Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless: (1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and (2) at least 90% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash: (A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and (B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion. (b) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds: (1) to repay Senior Debt in accordance with the Common Terms Agreement and this Indenture; or (2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds. (c) Pending the final application of any Net Cash Proceeds, the Company may reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture. (d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will constitute “Excess Proceeds.” If on any date, the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date, the Company will make an Asset Sale Offer in accordance with Section 3.09. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. (e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09. (f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
(1) the Company (Company, or the Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in such Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Equivalents, Replacement Assets or a combination thereof. For purposes of this provisionclause (3), each of the following will shall be deemed to be cash:
(Aa) any Indebtedness or other liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities Indebtedness that are by their terms subordinated to the Notes or any Note Guarantee) Notes), that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforwith respect to such Indebtedness or liabilities; and
(Bb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 90 days of the applicable Asset Sale by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that such conversion.
(b) [Reserved].
(c) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable any of its Restricted Subsidiary, as the case may be) Subsidiaries may apply an amount equal to such those Net Cash ProceedsProceeds at its option:
(1) (a) to permanently repay Senior Debt in accordance or reduce Indebtedness, other than Subordinated Indebtedness, of the Company and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; or (b) to permanently repay or reduce Indebtedness of any of the Common Terms Agreement and this Indenture; orCompany’s Restricted Subsidiaries;
(2) to make any capital expenditure or to purchase Replacement Assets (acquire, or enter into a binding agreement to make such capital expenditure acquire, all or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt substantially all of the Net assets (other than cash, Cash Proceeds from the related Asset Sale Equivalents and securities) of any Person engaged in a Permitted Business; provided, however, that any such commitment shall be subject only to customary conditions (ii) other than financing), and such acquisition shall be consummated no later than 180 days after the date end of such 365-day period;
(3) to acquire, or enter into a binding agreement to acquire, Voting Stock of a Person engaged in a Permitted Business from a Person that is not a Subsidiary of the Company; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 365-day period; and provided, further, however, that (a) if the Net Proceeds are from the sale of assets of the Company or any of its Restricted Subsidiaries or the Equity Interests of any of its Restricted Subsidiaries, after giving effect thereto, the Person so acquired becomes a Restricted Subsidiary and (Bb) if such capital expenditure acquisition is otherwise made in accordance with this Indenture, including, without limitation, Section 4.10 hereof;
(4) to acquire, or purchase enter into a binding agreement to acquire, previously issued and outstanding Voting Stock of a non-Wholly Owned Restricted Subsidiary of the Company (a) from a Person that is not an Affiliate of the Company or (b) in a brokered transaction through the facilities of a stock exchange; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated within no later than 180 days after the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.end of such 365-day period;
(c5) to make capital expenditures; or
(6) to acquire, or enter into a binding agreement to acquire, other long-term assets (other than securities) that are used or useful in a Permitted Business; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 365-day period. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will paragraph (c) above shall constitute “Excess Proceeds.” If on any date, ”
(e) When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date100.0 million, the Company will shall make an offer (an “Asset Sale Offer Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu in right of payment with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.093.09 hereof. The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness, plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, to the date of purchase purchase, and will shall be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale OfferOffer and all Holders of Notes have been given the opportunity to tender their Notes for purchase in accordance with such Asset Sale Offer and this Indenture, the Company and its Restricted Subsidiaries may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes and such other pari passu Indebtedness shall be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) . The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will shall comply with the applicable securities laws and regulations and will not shall be deemed not to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.09 Indenture by virtue of such complianceconflict.
Appears in 1 contract
Sources: Indenture (Quebecor Media Inc)
Asset Sales. (a) The Company TWI and the Companies will not, and will not permit any of its their respective Restricted Subsidiaries to, (each a "seller") to consummate an Asset Sale unless:
(1a) TWI, the Company (Companies or the such Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets sold, leased, transferred, conveyed or otherwise disposed of or Equity Interests issued or sold or otherwise disposed of;
(b) the fair market value is determined by TWI's Board of Directors and (B) evidenced by a resolution of such Board of Directors set forth in an amount equal Officer's Certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciationTrustee; and
(2c) at least 9075% of the consideration therefor received in the Asset Sale by TWI, the Company Companies or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(Aa) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s seller's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written novation agreement instrument that releases the Company or such Restricted Subsidiary seller from further liability thereforliability; and
(Bb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary seller from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salethe receipt thereof, to the extent of the cash or Cash Equivalents received in that conversion.
(b) . Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, TWI, the Company (Companies or the applicable such Restricted Subsidiary, as the case may be) Subsidiary may apply an amount equal those Net Proceeds (subject, in all respects, to such Net Cash Proceedsthe other covenants set forth in this Indenture) at its option:
(1a) to repay Senior Debt (or, in accordance the case of a Foreign Restricted Subsidiary, to repay Indebtedness or other liabilities) of TWI, the Companies or any of their Restricted Subsidiaries and, if the Senior Debt (or, in the case of a Foreign Restricted Subsidiary, the Indebtedness or other liabilities) repaid is revolving credit Indebtedness, to correspondingly reduce commitments with the Common Terms Agreement and this Indenture; orrespect thereto;
(2b) to make any capital expenditure or to purchase Replacement Assets acquire (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assetsacquire; provided that (A) the commitment to acquire under such capital expenditure or purchase is agreement shall be subject only to customary conditions and such acquisition shall be consummated within the later of (i) 360 60 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date end of such binding agreement and (B365-day period) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending the final application of any Net Cash Proceeds, the Company may reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will constitute “Excess Proceeds.” If on any date, the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date, the Company will make an Asset Sale Offer in accordance with Section 3.09. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of either all or substantially all of the assets of, or a majority of the Company and its Voting Stock of, another Person engaged in a Permitted Business or the minority interest in any Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.Subsidiary; or
Appears in 1 contract
Sources: Indenture (Twi Holdings Inc)
Asset Sales. (a) a. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) . the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) . at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will be deemed to be cash:
(A) A. any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms unsecured or subordinated in right of payment or as to Lien priority to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; andliability;
(B) B. any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are within 180 days after such Asset Sale, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion;
C. any stock or assets of the kind referred to in Section 4.10(b)(2) or (4) hereof; and
D. any Designated Noncash Consideration received by the Company or any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (D), not to exceed $5.0 million, with the Fair Market Value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(b) b. Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1. ( a) to repay Indebtedness and other Obligations under the Senior Debt in accordance Credit Facility and to correspondingly permanently reduce any revolving commitments with the Common Terms Agreement and this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale respect thereto and (iib) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending the final application of any Net Cash Proceeds, the Company may reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will constitute “Excess Proceeds.” If on any date, the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date, the Company will make an Asset Sale Offer in accordance with Section 3.09. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation case of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets asset or property of a Foreign Restricted Subsidiary of the Company Company, to repay Indebtedness and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 other Obligations under the Exchange Act and any other securities laws and regulations thereunder to agreements governing Permitted Debt described in clause (16) of the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.definition thereof;
Appears in 1 contract
Sources: Indenture (Castle a M & Co)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the Fair Market Value is determined by (i) in the case of property valued at less than $5.0 million, the Company's principal financial or accounting officer and evidenced by an Officers' Certificate delivered to the Trustee and (Bii) in the case of property valued at $5.0 million or more, the Company's Board of Directors and evidenced by a resolution of the Board of Directors set forth in an amount equal Officers' Certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciationTrustee; and
(23) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation or an assignment agreement that releases the Company or such Restricted Subsidiary from further liability thereforliability; and
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion.
(b) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash ProceedsProceeds at its option:
(1) to repay Senior Debt in accordance and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with the Common Terms Agreement and this Indenture; orrespect thereto;
(2) to make any capital expenditure acquire all or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt substantially all of the Net Cash Proceeds from assets of, or a majority of the related Asset Sale and Voting Stock of, another Permitted Business; or
(ii3) 180 days after the date of such binding agreement and (B) if such capital expenditure to acquire or purchase is not consummated within the period set forth obtain other long-term assets that are used or useful in subclause (A), the amount not so applied will be deemed to be Excess Proceedsa Permitted Business.
(c) Pending the final application of any Any Net Cash Proceeds, the Company may reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses second paragraph of this Section 4.09 4.10(b) will constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,00010.0 million, then within ten Business Days after such datefive days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.093.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to, but excluding, to the date of purchase purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(fd) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.09 4.10 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Hercules Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will shall be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; andliability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion.; and
(bC) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this Section 4.10. Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1) to repay Senior Debt in accordance repay, prepay or purchase Indebtedness and other Obligations (other than Disqualified Stock, Indebtedness of the Company or any Restricted Subsidiary that is contractually subordinated to the Notes or any Note Guarantee or any intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries) and, if the Indebtedness repaid is revolving credit Indebtedness under a Credit Facility, to correspondingly reduce commitments with respect thereto; provided, that the Common Terms Agreement and this Indenture; orCompany or such Restricted Subsidiary shall not be required to reduce the related commitments to an aggregate principal amount less than $400.0 million;
(2) to make acquire all or substantially all of the assets of, or any capital expenditure Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or to purchase Replacement Assets becomes a Restricted Subsidiary of the Company;
(or enter into a binding agreement 3) to make such a capital expenditure or to purchase such Replacement Assetsexpenditure; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.or
(c4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses second paragraph of this Section 4.09 4.10 will constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,00050.0 million, then within ten Business Days after such datefive days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.093.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, to the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) . The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.09 4.10 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Georgia Gulf Corp /De/)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater fair market value (evidenced by a resolution of (Athe Board of Directors of the Company set forth in an Officers’ Certificate delivered to the Trustee) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2ii) at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes ; provided that the amount of this provision, each of the following will be deemed to be cash:
(Ax) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Salesheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
and (By) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion.
(b) received), shall be deemed to be cash for purposes of this provision. Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
Proceeds (1a) to repay permanently reduce Specified Senior Debt in accordance with Indebtedness of the Common Terms Agreement Company and this Indentureits Restricted Subsidiaries including the 2011 Notes, the 2013 Notes and the 2023 Notes; or
provided that such Net Proceeds shall be applied to all Specified Senior Indebtedness of the Company and its Restricted Subsidiaries on a pro rata basis or (2b) to make any an Investment, the making of a capital expenditure or the acquisition of Receivables or other tangible assets, in each case, in or with respect to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Permitted Business. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings Indebtedness under Bank Lines, Credit Facilities and/or Residual Funding Facilities, or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses first sentence of this Section 4.09 will paragraph shall be deemed to constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date25 million, the Company will shall be required to make an offer to all Holders of the Notes (an “Asset Sale Offer in accordance with Section 3.09. The Offer”) to purchase the maximum principal amount of the Notes that may be purchased out of the Excess Proceeds, at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages thereon, if any, to, but excluding, to the date of purchase and will be payable purchase, in cashaccordance with the procedures set forth in this Indenture. If To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any Excess Proceeds remain unapplied after consummation for general corporate purposes. If the aggregate principal amount of an Asset Sale Offerthe Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this IndentureTrustee shall select the Notes to be purchased on a pro rata basis. Upon completion of each Asset Sale Offersuch offer to purchase Notes, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Americredit Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary of its Restricted Subsidiaries the Company to, consummate an any Asset Sale unless:
(1i) the Company (or the such Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale such sale or other disposition at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and;
(2ii) at least 90not less than 75% of the consideration therefor received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of ; provided that the following will also be deemed to be cash:cash for purposes of this clause (ii):
(A) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Salesheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated subordinate in right of payment to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforliability; and
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company or such Subsidiary into cash (to the extent of the cash received in that conversion); and
(iii) the Net Cash Proceeds received by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Saleare applied:
(A) first, to the extent of the cash or Cash Equivalents received in that conversion.
(b) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable any such Restricted Subsidiary, as the case may be) may apply an amount equal , elects, or is required, to such Net Cash Proceeds:
(1) to prepay, repay Senior Debt in accordance with the Common Terms Agreement and this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated Indebtedness under the Credit Agreement within the later of (i) 360 180 days after following the receipt of the Net Cash Proceeds from any Asset Sale; provided that any such repayment shall result in a permanent reduction of the related Asset Sale and (ii) 180 days after commitments thereunder in an amount equal to the date of such binding agreement and principal amount so repaid;
(B) if such capital expenditure or purchase is not consummated within second, to the period set forth extent of the balance of Net Cash Proceeds after application as described in subclause (A) above, to the extent the Company elects, to an Investment in property or other assets (including Capital Stock or other securities purchased in connection with the acquisition of Capital Stock or property of another Person) in compliance with Section 8.13; provided that
(1) such Investment occurs or the Company or any such Restricted Subsidiary enters into contractual commitments to make such Investment, subject only to customary conditions (other than the obtaining of financing), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending the final application within 180 days following receipt of any such Net Cash Proceeds; and
(2) Net Cash Proceeds so contractually committed are so applied within 270 days following the receipt of such Net Cash Proceeds; and
(C) third, if on such 180th day in the case of clauses (iii)(A) and (iii)(B)(1) (if applicable) or on such 270th day in the case of clause (iii)(B)(2) (if applicable) with respect to any Asset Sale, the Available Asset Sale Proceeds exceed $1.0 million, the Company may reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An shall apply an amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will constitute “Excess Proceeds.” If on any date, the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date, the Company will make an Available Asset Sale Offer in accordance with Section 3.09. The Proceeds to an offer to repurchase the Notes, at a purchase price in any Asset Sale Offer will be cash equal to the sum of 100% of the principal amount thereof plus Applicable Premium plus accrued and unpaid interest and Additional Interestinterest, if any, to, but excluding, to the purchase date in accordance with the terms of purchase and will be payable in cash. Section 7.09.
(b) If any an Excess Proceeds remain unapplied after consummation of an Asset Sale OfferOffer is not fully subscribed, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion retain the portion of each the Available Asset Sale Offer, Proceeds not required to repurchase Notes and the amount of Excess Available Asset Sale Proceeds will shall be reset at zeroto zero (0).
(ec) Notwithstanding In the foregoing, event of the sale, conveyance or other disposition transfer of all or substantially all of the property and assets of the Company and its Restricted SubsidiariesSubsidiaries as an entirety to a Person in a transaction permitted under Section 8.10 or Section 13.03, taken as a whole, the successor Person will be governed by deemed to have sold the provisions properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.14 and/or the provisions of Section 5.01 8.05, and not by must comply with the provisions of this Section 4.09.
(f) The Company will comply 8.05 with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder respect to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to deemed sale as if it were an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such complianceSale.
Appears in 1 contract
Sources: Purchase Agreement (American Coin Merchandising Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater of (A) the Fair Market Value (as determined by the Board of Directors) of the assets or Equity Interests issued or sold or otherwise disposed of; provided that this clause (i) shall not apply to an Asset Sale resulting solely from a foreclosure or sale by a third party upon assets or property subject to a Lien not prohibited by this Indenture;
(ii) where such Fair Market Value exceeds $25.0 million, the Company’s Board of and (B) Directors’ determination of such Fair Market Value is set forth in an amount equal Officers’ Certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciationTrustee; and
(2iii) at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will shall be deemed to be cashCash Equivalents:
(A) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (sheet, or as would be shown on the Company’s consolidated or such Restricted Subsidiary’s balance sheet as of on the date of such Asset Sale) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities liabilities, Indebtedness that are is by their its terms subordinated to the Notes or any Note GuaranteeGuarantee and liabilities to the extent owed to the Company or any Affiliate of the Company) that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted (including by way of any Monetization Transaction) by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion) within 120 days of such Asset Sale.
(b) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash ProceedsProceeds at its option:
(1i) to repay Senior Debt in accordance unsubordinated secured Indebtedness and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(ii) to acquire all or substantially all of the Common Terms Agreement and assets of, or a majority of the Voting Stock of, another Permitted Business (including by means of a merger, consolidation or other business combination permitted under this Indenture) to be held, commencing on the date of such acquisition, as or in a Restricted Subsidiary of the Company;
(iii) to pay for or purchase Replacement Assets; or
(2iv) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt combination of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) foregoing. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(dc) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will 4.10(b) above shall constitute “Excess Proceeds.” If on any date, Within 30 days after the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date25.0 million, the Company will shall make an Asset Sale Offer in accordance offer (an “Asset Sale Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with Section 3.09the Notes or any Note Guarantee containing provisions similar to those set forth by this Indenture with respect to offers to purchase with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, to the date of purchase purchase, and will shall be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes and such other pari passu Indebtedness shall be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(fd) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale Offer provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or the Asset Sale Offer provisions of this Section 4.09 Indenture by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater fair market value (evidenced by a resolution of (Athe Board set forth in an Officers' Certificate delivered to the Trustee) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9070% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will shall be deemed to be cash:
(Aa) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Salesheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforassets; and
(Bb) any securitiesnotes, notes securities or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately (subject to normal settlement periods) converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion.
(b) Within received). The Company may apply such Net Proceeds, at its option, within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1) to repay permanently reduce;
(a) Senior Debt in accordance with the Common Terms Agreement and this IndentureIndebtedness; or
(b) Indebtedness of the Company's Restricted Subsidiaries;
(2) to make any capital expenditure or an offer to purchase Replacement Assets (or enter into a binding agreement repurchase the Existing Senior Subordinated Notes to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after extent required by and in accordance with the receipt terms of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.Existing Senior Subordinated Indenture; or
(c3) to invest in the business or businesses of the Company or any of its Restricted Subsidiaries or any business directly related to any business then conducted by the Company or any of its Restricted Subsidiaries or any business related to the aircraft industry or used for working capital purposes. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce the revolving credit borrowings portion of Senior Indebtedness or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . 44 Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 (1), (2) or (3) above will be deemed to constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10.0 million, the Company will be required to make an offer to all Holders of Notes and the holders of Pari Passu Notes requiring the making of such an offer (an "Asset Sale Offer in accordance with Section 3.09. The Offer") to purchase the maximum principal amount of Notes and Pari Passu Notes that may be purchased out of the Excess Proceeds, at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, Liquidated Damages thereon to the date of purchase purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of Pari Passu Notes tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company and its Restricted Subsidiaries may use those any remaining Excess Proceeds for any purpose not otherwise prohibited general corporate purposes. If the aggregate principal amount of Notes and Pari Passu Notes surrendered by this IndentureHolders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and Pari Passu Notes to be purchased on a pro rata basis. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (K&f Industries Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests of any Restricted Subsidiary issued or sold or otherwise disposed of;
(2) the fair market value is determined by the Company's Board of Directors and (B) evidenced by a resolution of the Board of Directors set forth in an amount equal Officer's Certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciationTrustee; and
(23) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or and/or Replacement Assets or a combination thereofAssets. For purposes of this provision, each of the following will shall be deemed to be cash:
(Aa) any liabilities, as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Restricted Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforliability; and
(Bb) any securities, notes Notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are are, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Saledays, to the extent of the cash or Cash Equivalents received in that conversion; and
(c) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in an Asset Sale.
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such those Net Cash ProceedsProceeds at its option:
(1) to repay Senior Debt in accordance and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with the Common Terms Agreement and this Indenture; orrespect thereto;
(2) to acquire all or substantially all of the assets of, or all or a majority of the Voting Stock of another Permitted Business; or
(3) to acquire other long-term assets or property that are used or useful in a Permitted Business or to make any a capital expenditure or to purchase Replacement Assets (or enter into a binding definitive agreement committing to make such capital acquisition or expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days six months after the date of such binding agreement and (B) agreement; provided that if such capital expenditure or purchase agreement is not consummated within the period set forth in subclause (A)terminated, the amount not so applied will be deemed Company may invest such Net Proceeds prior to be Excess Proceeds.
the end of such 365-day period, or if later, prior to the end of such six-month period referred to in this clause (c) 3)). Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(dc) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will 4.10(b) shall constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date15.0 million, the Company will shall make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, to the date of purchase purchase, and will shall be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis as provided in Section 3.02 57 hereof or such other manner as the Trustee deems appropriate. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will then remaining, if any, shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) . The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations4.10, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 4.10 by virtue of such complianceconflict.
Appears in 1 contract
Sources: Indenture (Genesis Healthcare Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
(1) the Company (Company, or the Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in such Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Equivalents, Replacement Assets or a combination thereof. For purposes of this provisionclause (3), each of the following will shall be deemed to be cash:
(Aa) any Indebtedness or other liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities Indebtedness that are by their terms subordinated to the Notes or any Note Guarantee) Notes), that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforwith respect to such Indebtedness or liabilities; and
(Bb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 90 days of the applicable Asset Sale by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that such conversion.
(b) [Reserved].
(c) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable any of its Restricted Subsidiary, as the case may be) Subsidiaries may apply an amount equal to such those Net Cash ProceedsProceeds at its option:
(1) (a) to permanently repay Senior Debt in accordance or reduce Indebtedness, other than Subordinated Indebtedness, of the Company and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; or (b) to permanently repay or reduce Indebtedness of any of the Common Terms Agreement and this Indenture; orCompany’s Restricted Subsidiaries;
(2) to make any capital expenditure or to purchase Replacement Assets (acquire, or enter into a binding agreement to make such capital expenditure acquire, all or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt substantially all of the Net assets (other than cash, Cash Proceeds from the related Asset Sale Equivalents and securities) of any Person engaged in a Permitted Business; provided, however, that any such commitment shall be subject only to customary conditions (ii) other than financing), and such acquisition shall be consummated no later than 180 days after the date end of such 365-day period;
(3) to acquire, or enter into a binding agreement to acquire, Voting Stock of a Person engaged in a Permitted Business from a Person that is not a Subsidiary of the Company; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 365-day period; and provided, further, however, that (a) if the Net Proceeds are from the sale of assets of the Company or any of its Restricted Subsidiaries or the Equity Interests of any of its Restricted Subsidiaries, after giving effect thereto, the Person so acquired becomes a Restricted Subsidiary and (Bb) if such capital expenditure acquisition is otherwise made in accordance with this Indenture, including, without limitation, Section 4.10 hereof;
(4) to acquire, or purchase enter into a binding agreement to acquire, previously issued and outstanding Voting Stock of a non-Wholly Owned Restricted Subsidiary of the Company (a) from a Person that is not an Affiliate of the Company or (b) in a brokered transaction through the facilities of a stock exchange; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated within no later than 180 days after the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.end of such 365-day period;
(c5) to make capital expenditures; or
(6) to acquire, or enter into a binding agreement to acquire, other long-term assets (other than securities) that are used or useful in a Permitted Business; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 365-day period. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will paragraph (c) above shall constitute “Excess Proceeds.” If on any date, ”
(e) When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date100.0 million, the Company will shall make an offer (an “Asset Sale Offer Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu in right of payment with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.093.09 hereof. The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness, plus accrued and unpaid interest and Additional Interestinterest, if any, to, but excluding, to the date of purchase purchase, and will shall be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale OfferOffer and all Holders of Notes have been given the opportunity to tender their Notes for purchase in accordance with such Asset Sale Offer and this Indenture, the Company and its Restricted Subsidiaries may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes and such other pari passu Indebtedness shall be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) . The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will shall comply with the applicable securities laws and regulations and will not shall be deemed not to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.09 Indenture by virtue of such complianceconflict.
Appears in 1 contract
Sources: Indenture (Quebecor Media Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate cause, make or suffer to exist an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater fair market value (evidenced by a resolution of (Athe Board of Directors set forth in an Officers' Certificate delivered to the Trustee) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2ii) at least 9080% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereof. For purposes Equivalents; provided that the amount of this provision, each of the following will be deemed to be cash:
(Ax) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Salesheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Senior Subordinated Notes or any Note Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
liability, (By) any securities, Excludable Current Liabilities and (z) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion.
(b) received), shall be deemed to be cash for purposes of this provision. Within 360 365 days after the Company's or any Restricted Subsidiary's receipt of the Net Proceeds of any Net Cash Proceeds from an Asset SaleSale (or, the Company (or the applicable Restricted Subsidiary, as in the case may be) may apply an amount equal to such Net Cash Proceeds:
(1) to repay Senior Debt in accordance with of any Asset Sale involving the Common Terms Agreement and this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within Specified Real Estate, by the later of (i) 360 June 30, 1999 and (ii) the date 365 days after the receipt of the Net Cash Proceeds), the Company or such Restricted Subsidiary may apply the Net Proceeds from such Asset Sale, at its option, (i) to permanently repay or reduce Obligations under the related Asset Sale Bank Credit Agreement (and to correspondingly reduce commitments with respect thereto) or other Senior Debt, (ii) 180 days after to secure Letter of Credit Obligations to the extent related letters of credit have not been drawn upon or returned undrawn and/or (iii) to an investment in any one or more businesses, capital expenditures or acquisitions of other assets, in each case, used or useful in a Principal Business; provided that such Net Proceeds may, at the Company's option, be deemed to have been applied pursuant to clause (iii) to the extent of any expenditures by the Company made to invest in, acquire or construct businesses, properties or assets used in the Principal Business within one year preceding the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Asset Sale. Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Cash Equivalents. Any Net Cash Proceeds from the Asset Sales Sale that are not applied or invested as provided and within the time period set forth in the preceding clauses first sentence of this Section 4.09 will paragraph shall be deemed to constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date15.0 million, the Company will shall make offers to all Holders of Senior Subordinated Notes and to holders of any other Senior Subordinated Indebtedness, the terms of which so require (each an "Asset Sale Offer in accordance with Section 3.09. The Offer"), to purchase the maximum principal amount of Senior Subordinated Notes and such other Senior Subordinated Indebtedness, that is an integral multiple of $1,000, that may be purchased out of the Excess Proceeds at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the aggregate principal amount thereof (or 100% of the accreted value thereof, in the case of Senior Subordinated Indebtedness issued at a discount), plus accrued and unpaid interest and Additional Interestinterest, including Liquidated Damages, if any, to, but excluding, thereon to the date fixed for the closing of purchase and will be payable such offer in cashaccordance with the procedures set forth in Section 3.09 hereof. If any The Excess Proceeds remain unapplied after consummation of shall be allocated to the respective Asset Sale Offers for the Senior Subordinated Notes and such other Senior Subordinated Indebtedness in proportion to their relative principal amounts (or accreted value, as applicable). The Company shall commence an Asset Sale OfferOffer with respect to Excess Proceeds within 10 Business Days after the date that the aggregate amount of Excess Proceeds exceeds $15.0 million according to the procedure described in Section 3.09 hereof. To the extent that the aggregate amount of Senior Subordinated Notes (and other Senior Subordinated Indebtedness) tendered pursuant to any required Asset Sale Offer is less than the Excess Proceeds allocated thereto, the Company and its Restricted Subsidiaries may use those any remaining Excess Proceeds (x) to offer to redeem or purchase other Senior Subordinated Indebtedness or Subordinated Indebtedness (a "Subordinated Asset Sale Offer") in accordance with the provisions of the indenture or other agreement governing such other Senior Subordinated Indebtedness or Subordinated Indebtedness or (y) for any other purpose not otherwise prohibited by this Indentureany provision herein. If the aggregate principal amount of Senior Subordinated Notes tendered pursuant to any Asset Sale Offer exceeds the amount of Excess Proceeds allocated thereto, the Trustee shall select the Senior Subordinated Notes to be purchased on a pro rata basis, based upon the principal amount of Senior Subordinated Notes tendered. Upon completion of each any such Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) . Notwithstanding the foregoing, the saleCompany may, conveyance in lieu of making an Asset Sale Offer for other Senior Subordinated Indebtedness, satisfy its obligation under the governing agreement with respect thereto by applying the Excess Proceeds allocated to such other Senior Subordinated Indebtedness to the prepayment, redemption or other disposition public or private repurchase of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) such Senior Subordinated Indebtedness. The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each the repurchase of the Senior Subordinated Notes pursuant to as a result of an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such complianceSale.
Appears in 1 contract
Sources: Indenture (JCS Realty Corp)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will shall be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; andliability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion.; and
(bC) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this Section 4.10. Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash ProceedsProceeds at its option:
(1) to repay repay, prepay or purchase Senior Debt in accordance and, if the Senior Debt repaid is revolving credit Indebtedness under a Credit Facility, to correspondingly reduce commitments with respect thereto; provided, that the Common Terms Agreement and this Indenture; orCompany or such Restricted Subsidiary shall not be required to reduce the related commitments to an aggregate principal amount less than $400.0 million;
(2) to make acquire all or substantially all of the assets of, or any capital expenditure Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or to purchase Replacement Assets becomes a Restricted Subsidiary of the Company;
(or enter into a binding agreement 3) to make such a capital expenditure or to purchase such Replacement Assetsexpenditure; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.or
(c4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses second paragraph of this Section 4.09 4.10 will constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,00050.0 million, then within ten Business Days after such datefive days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09. The offer price in any Asset Sale Offer will 3.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be equal to 100% purchased out of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.Excess
Appears in 1 contract
Sources: Indenture (Georgia Gulf Corp /De/)
Asset Sales. (a) The Company will Partnership shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company Partnership (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of and of;
(Bii) such fair market value is determined by (a) an amount equal executive officer of the General Partner if the value is less than $10.0 million, as evidenced by an Officers’ Certificate delivered to the invested cost Trustee or (b) the Board of Directors of the assets sold General Partner if the value is $10.0 million or otherwise disposed ofmore, less depreciationas evidenced by a resolution of such Board of Directors of the General Partner; and
(2iii) at least 9075% of the aggregate consideration therefor received by the Company or such Partnership and its Restricted Subsidiary Subsidiaries in the Asset Sale and all other Asset Sales of the Partnership and its Restricted Subsidiaries since the Issue Date is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provisionclause (iii), each of the following will shall be deemed to be cash:
(A) any liabilities, liabilities (as shown on the Companysuch Issuer’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Salesheet) of the Company Partnership or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company Partnership or such Restricted Subsidiary from further liability thereforliability; and
(B) any securities, notes or other obligations Obligations received by the Company Partnership or any such Restricted Subsidiary from such transferee that are within 90 days after the Asset Sale (subject to ordinary settlement periods) converted by the Company such Issuer or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion).
(b) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (Partnership or the applicable a Restricted Subsidiary, as the case may be) Subsidiary may apply an amount equal to such Net Cash Proceeds:
(1) to repay Senior Debt in accordance with the Common Terms Agreement and this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding definitive agreement to make for such capital expenditure or to purchase such Replacement Assets; application, provided that (Asuch application occurs within 90 days after the end of such 360-day period) such capital expenditure or purchase is consummated within the later of Net Proceeds at its option:
(i) 360 to repay senior Indebtedness of the Partnership and/or its Restricted Subsidiaries (or to make an offer to repurchase or redeem any such Indebtedness, provided that such repurchase or redemption closes within 45 days after the receipt end of the Net Cash Proceeds from the related Asset Sale and such 360-day period);
(ii) 180 days after the date of such binding agreement and (B) if such to make a capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.a Permitted Business;
(ciii) to acquire other long-term tangible assets that are used or useful in a Permitted Business; or
(iv) to invest in any other Permitted Business Investment or any other Permitted Investments other than Investments in Cash Equivalents, Interest Swaps or Currency Agreements. Pending the final application of any such Net Cash Proceeds, the Company Partnership or a Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(dc) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 4.07(b) above will constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date20.0 million, the Company Issuers will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and (including any Additional InterestInterest in the case of the Notes), if any, toto the Purchase Date, but excludingsubject to the rights of any Holder in whose name a Note is registered on a record date occurring prior to the Purchase Date to receive interest on an Interest Payment Date that is on or prior to the Purchase Date, the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries Partnership may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, including, without limitation, the amount repurchase or redemption of Excess Proceeds will be reset at zero.
(e) Notwithstanding Indebtedness of the foregoingIssuers or any Subsidiary Guarantor that is subordinated to the Notes or, in the case of any Subsidiary Guarantor, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue Guarantee of such compliance.Subsidiary
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale (including a Sale of Designated Assets) unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and;
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will shall be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeNotes) that are assumed by the transferee of any such assets pursuant to a written customary novation or similar agreement that releases the Company or such Restricted Subsidiary from further liability therefor; andliability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion; and
(C) except in the case of a Sale of Designated Assets, any stock or assets of the kind referred to in clauses (4) or (6) of Section 4.10(b); and
(3) in the case of a Sale of Designated Assets other than Canadian Gas Assets, the Company (or the Restricted Subsidiary, as the case may be) shall deposit the Net Proceeds as cash collateral in a segregated account (a "Designated Asset Sale Proceeds Account") held by the Collateral Trustee or its agent to secure the Secured Obligations; provided, that for so long as the terms of any of the Company's senior unsecured notes that were issued prior to August 10, 2000 would prevent such a pledge by a Restricted Subsidiary, the Company shall deposit with the Collateral Trustee or its agent an amount of cash equal to the Net Proceeds as cash collateral to secure the Secured Obligations, and the applicable Restricted Subsidiary shall not be obligated to do so.
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, other than a Sale of Designated Assets that are not Canadian Gas Assets, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such those Net Cash Proceeds:
(1) to repay Senior Priority Lien Debt and/or cash collateralize letters of credit constituting Priority Lien Debt;
(2) in accordance with the Common Terms Agreement and case of an Asset Sale by a Restricted Subsidiary, to repay or repurchase Indebtedness of Calpine Canada Energy Finance ULC and/or Calpine Canada Energy Finance II ULC existing on the date of this Indenture;
(3) in the case of an Asset Sale by a Restricted Subsidiary, to repay or repurchase Indebtedness of any Restricted Subsidiary and, if such Indebtedness is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(4) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(5) to make a capital expenditure; or
(26) to make any capital expenditure acquire other assets that are not classified as current assets under GAAP and that are used or to purchase Replacement Assets useful in a Permitted Business.
(or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (Ac) such capital expenditure or purchase is consummated within the later of (i) 360 Within 180 days after the receipt of the any Net Cash Proceeds from the related an Asset Sale and (ii) 180 days after the date that constitutes a Sale of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending the final application of any Net Cash ProceedsDesignated Assets other than Canadian Gas Assets, the Company (or the Restricted Subsidiary that disposed of those Designated Assets, as the case may reduce be) may apply those Net Proceeds to purchase other assets that would constitute Designated Assets or to repay Priority Lien Debt and/or cash collateralize letters of credit constituting Priority Lien Debt and, if such Priority Lien Debt is revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this IndentureIndebtedness, to correspondingly reduce commitments with respect thereto.
(d) An amount equal to any Any Net Cash Proceeds from Asset Sales (including Sales of Designated Assets) that are not applied or invested as provided in the preceding clauses of this Section 4.09 will 4.10 shall constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,00050.0 million, then within ten Business Days after or at such dateearlier point as may be elected by the Company, the Company will shall make an offer to all holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes and equally and ratably secured with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, including the 2010 Notes, the 2013 Notes, the Term Loans and each series of Existing Indebtedness that contains similar asset sale provisions, when applicable (an "Asset Sale Offer in accordance with Section 3.09Offer"), to purchase or redeem the maximum principal amount of notes and such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds (including each series of Existing Indebtedness that contains similar asset sale provisions). The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interestinterest, if any, to, but excluding, to the date of purchase purchase, and will shall be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Company shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, to the sale, conveyance extent that any or other disposition of all or substantially all of the assets Net Proceeds of any Foreign Asset Sale is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Proceeds so affected shall not be required to be applied at the time provided above, but may be retained by the applicable Restricted Subsidiary so long, but only so long, as the applicable local law shall not permit repatriation to the United States. The Company shall promptly take or cause the applicable Restricted Subsidiary to promptly take all actions required by the applicable local law to permit such repatriation. Once such repatriation of any of the Company affected Net Proceeds is permitted under the applicable local law, the repatriation shall be immediately effected and its Restricted Subsidiaries, taken as a whole, will the repatriated Net Proceeds shall be governed by applied in the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of manner set forth in this Section 4.094.10 as if the Asset Sale had occurred on the date of such repatriation.
(f) Notwithstanding the foregoing, to the extent that the Board of Directors determines, in good faith, that repatriation of any or all of the Net Proceeds of any Foreign Asset Sale would have a material adverse tax consequence to the Company, the Net Proceeds so affected may be retained outside of the United States by the applicable Restricted Subsidiary for so long as such material adverse tax consequence would continue.
(g) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.09 Indenture by virtue of such complianceconflict.
Appears in 1 contract
Sources: Indenture (Calpine Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
: (1a) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; (b) in the case of Asset Sales for consideration exceeding $5.0 million, the fair market value is determined by the Company's Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2c) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
: (Ai) any liabilities, as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on in the Company’s consolidated balance sheet as of the date of such Asset Sale) notes thereto, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforliability; and
and (Bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion.
(b) . A transfer of assets by the Company to a Wholly Owned Restricted Subsidiary or by a Wholly Owned Restricted Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary, and an issuance of Equity Interests by a Wholly Owned Restricted Subsidiary to the Company or to another Wholly Owned Restricted Subsidiary, shall not be deemed to be an Asset Sale. Any Restricted Payment that is permitted by Section 4.07 hereof will not be deemed to be an Asset Sale. Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such the Net Cash Proceeds:
, at its option, either (1a) to repay Senior Debt in accordance and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto, (b) to acquire all or substantially all of the Common Terms Agreement and this Indenture; or
assets of, or a majority of the Voting Stock of, another Permitted Business, (2c) to make any a capital expenditure expenditure, or (d) to purchase Replacement Assets (acquire other long-term assets that are used or enter into useful in a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Permitted Business. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses first sentence of this Section 4.09 paragraph will be deemed to constitute “Excess Proceeds"EXCESS PROCEEDS.” If " Within ten Business Days of each date on any date, which the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10 million, the Company will shall make an Asset Sale Offer in accordance with pursuant to Section 3.093.09 hereof to purchase the maximum principal amount of Notes and such other PARI PASSU Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional InterestSpecial Interest thereon, if any, to, but excluding, to the date of purchase purchase, in accordance with the procedures set forth in Section 3.09 hereof, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will be deemed to be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not ------------ permit any of its Restricted Subsidiaries to, engage in or consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost fair market value of the assets sold or otherwise disposed ofof (as determined by the Board of Directors in good faith, less depreciation; and
whose determination shall be conclusive evidence thereof and shall be evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (2ii) at least 9075% of the consideration therefor thereof received by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents other than in the case where the Company or Replacement Assets or such Restricted Subsidiary is undertaking a combination thereof. For purposes Permitted Asset Swap; provided that the amount of this provision, each of the following will be deemed to be cash:
(Ax) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Securities or any Note GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant to a written novation customary agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
and (By) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 15 days by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion.
(breceived) shall be deemed to be cash for purposes of this provision. Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company or its Restricted Subsidiaries may apply such Net Proceeds, at its option, (a) to permanently reduce Senior Debt, or (b) to the investment in, or the applicable making of a capital expenditure or the acquisition of, other property or assets in each case used or useable in a Permitted Business, or Capital Stock of any Person primarily engaged in a Permitted Business if, as a result of the investment in or acquisition by the Company or any Restricted Subsidiary thereof, such Person becomes a Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1) to repay Senior Debt in accordance with the Common Terms Agreement and this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) a combination of the uses described in clauses (a) and (b). Pending the final application of any such Net Cash Proceeds, the Company or 37 its Restricted Subsidiaries may temporarily reduce revolving credit borrowings Senior Debt or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales (including any Net Proceeds from Asset Sales that were not applied or invested in accordance with the second paragraph of Section 4.10 of the 1998 Notes Indenture prior to the Closing Date or used to make an Asset Sale Offer), that are not applied or invested as provided in the preceding clauses first sentence of this Section 4.09 paragraph within the 360-day period after receipt of such Net Proceeds will be deemed to constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10.0 million (an "Asset Sale Offering Triggering Event"), the Company will be required to make an offer to all Holders of Securities and, to the extent required by the terms of any Pari Passu Indebtedness to all holders of such Pari Passu Indebtedness (an "Asset Sale Offer in accordance with Section 3.09. The Offer") to purchase the maximum principal amount of Securities and any such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds, at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages thereon, if any, to, but excluding, to the date of purchase purchase, in accordance with the procedures set forth in Section 3.09 hereof or such Pari Passu Indebtedness, as applicable. To the extent that the aggregate principal amount of Securities and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of such Pari Passu Indebtedness tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company and or its Restricted Subsidiaries may use those any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Securities and any purpose not otherwise prohibited such Pari Passu Indebtedness surrendered by this Indentureholders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Securities to be purchased on a pro rata basis. Upon completion of each such Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Advance Auto Parts Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents, Cash Equivalents or Replacement Assets or a combination thereofprovided that this requirement shall not apply to an Asset Sale in respect of non-operating mining assets. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies against further liability therefor; andliability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion;
(C) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (x) $75.0 million and (y) 5.00% of Consolidated Total Assets at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(D) any stock or assets of the kind referred to in clauses (3) or (5) of the next paragraph of this Section 4.10.
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1) to repay Senior Debt in accordance with the Common Terms Agreement and this Indenture; orIndebtedness that is secured by a Lien;
(2) to make any capital expenditure repay Obligations under other Indebtedness (other than Disqualified Stock or subordinated Indebtedness), other than Indebtedness owed to purchase Replacement Assets (the Company or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assetsan Affiliate of the Company; provided that the Company shall equally and ratably reduce the Obligations under the Notes as provided under Section 3.07 hereof, through open market purchases (Ato 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 Sale Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of the Notes that would otherwise be prepaid;
(3) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(4) to make a capital expenditure expenditure;
(5) to acquire other assets that are not classified as current assets under U.S. GAAP and that are used or purchase is consummated within useful in a Permitted Business; or
(6) any combination of the later foregoing; provided that, in the case of clauses (i3) 360 days after the receipt and (5) above, a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the related Asset Sale and (ii) date of such commitment so long as the Company or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of the date thereof; provided that if any commitment is later canceled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds from and after the date of such binding agreement and (B) if such capital expenditure cancelation or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) termination. Pending the final application of any Net Cash Proceeds, the Company (or the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(dc) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 4.10(b) hereof will constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,00050.0 million, then within ten Business Days after such datefive days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets in accordance with Section 3.093.09 hereof to purchase, prepay or redeem the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount amount, plus accrued and unpaid interest and Additional Interestinterest, if any, to, to (but excluding, ) the date of purchase purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and the applicable agent shall select such other pari passu Indebtedness to be purchased on a pro rata basis (or, in the case of Notes issued in global form, in accordance with the applicable procedures of DTC), based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(fd) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and or regulations are applicable in connection with each the repurchase of Notes pursuant to an Asset Sale Offer. To Notwithstanding anything to the contrary herein, to the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 Indenture by virtue of such compliancethereof.
Appears in 1 contract
Sources: Indenture (Coeur Mining, Inc.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the such Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9070% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereofcash and Marketable Securities. For the purposes of clause (2) of this provisionSection 4.10(a) and for no other purpose, each of the following will shall be deemed to be cash:
(Aa) Cash Equivalents;
(b) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet Indebtedness (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Saleother than any Subordinated Indebtedness) of the Company or any of its Restricted Subsidiary (other than contingent liabilities and liabilities Subsidiaries that are by their terms subordinated to the Notes or any Note Guarantee) that are is actually assumed by the transferee of any in such assets pursuant to a written novation agreement Asset Sale (provided that releases the Company or such Restricted Subsidiary Subsidiary, as the case may be, making the Asset Sale is released from further liability therefor; andits obligations with respect to such Indebtedness);
(Bc) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary of the Company from such transferee that are converted by the Company or such Restricted Subsidiary recipient within 120 days into cash or Cash Equivalents within 90 days after such Asset SaleEquivalents, to the extent of the cash or Cash Equivalents received in that conversion; and
(d) the Fair Market Value of any property or other assets (including Equity Interests of any Person that shall be a Restricted Subsidiary of the Company following receipt thereof) received that are used or useful in a Permitted Business.
(b) Within 360 days 12 months after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) , may apply an amount equal to such Net Cash ProceedsProceeds at its option:
(1) to permanently repay Senior Debt or prepay
(a) Obligations under Indebtedness secured by Permitted Liens (whose commitments shall be correspondingly reduced permanently upon such repayment or prepayment);
(b) Obligations under the Notes or any other Pari Passu Indebtedness of an Issuer or any Subsidiary Guarantor; provided that if the Company or any such Restricted Subsidiary of the Company shall so repay or prepay any such other Pari Passu Indebtedness, the Issuers shall reduce (or offer to reduce) Obligations under the Notes on a pro rata basis (based on the amount so applied to such repayments or prepayments) by, at their option, (A) redeeming Notes as described under Section 3.07 (B) making an offer (in accordance with the Common Terms Agreement procedures set forth below for an Asset Sale Offer) to all holders to purchase their Notes at least 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon up to the principal amount of Notes to be repurchased or (C) purchasing Notes through privately negotiated transactions or open market purchases, in a manner that complies with this Indenture and this Indentureapplicable securities law, at a price not less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon; or
(c) Indebtedness of a Restricted Subsidiary of the Company that is a Non-Guarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary of the Company;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure;
(4) to acquire Additional Assets or improve or develop existing assets to be used in a Permitted Business; or
(5) in any capital expenditure combination of applications described in clauses (1), (2) (3) or to purchase Replacement Assets (4) of this Section 4.10(b); provided that in the case of clause (2), (3), or enter into (4) of this Section 4.10(b), a binding agreement commitment to acquire the assets of, or Capital Stock of, another Permitted Business, invest in Additional Assets or to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later expenditures shall be treated as a permitted application of (i) 360 days after the receipt an amount of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and commitment so long as the Company or such Restricted Subsidiary enters into such commitment with the good faith expectation that such amount of Net Proceeds shall be applied to satisfy such commitment within 180 days of such commitment (Ban “Acceptable Commitment”) if and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before such capital expenditure or purchase amount of Net Proceeds is not consummated within the period set forth applied in subclause (A)connection therewith, the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 180 days of such cancellation or termination, it being understood that if a Second Commitment is later cancelled or terminated for any reason before such amount not so applied will be deemed to be of Net Proceeds is applied, then such amount of Net Proceeds shall constitute Excess Proceeds.
(c) Pending the final application Any amounts of any Net Cash Proceeds, the Company may reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will 4.10(b) shall constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,00025.0 million, then within ten Business Days after such datethereafter, the Company will shall make an Asset Sale Offer to all holders of Notes and if the Company elects (or is required by the terms of such other Pari Passu Indebtedness), all holders of other Pari Passu Indebtedness (an “Asset Sale Offer”) to purchase the maximum aggregate principal amount of Notes and such Pari Passu Indebtedness, in accordance denominations of $2,000 principal amount and multiples of $1,000 in excess thereof, that may be purchased with Section 3.09. The an amount equal to the Excess Proceeds at an offer price in any Asset Sale Offer will be equal to cash in an amount not less than 100% of the principal amount thereof, or, in the case of Pari Passu Indebtedness represented by securities sold at a discount, not less than the amount of the accreted value thereof at such time, plus accrued and unpaid interest and Additional Interestto the date fixed for the closing of such offer, if any, to, but excludingin accordance with the procedures set forth in this Indenture. In the event that the Company or any Restricted Subsidiary of the Company prepays any Pari Passu Indebtedness that is outstanding under a revolving credit or other committed loan facility pursuant to an Asset Sale Offer, the date Company or such Restricted Subsidiary shall cause the related loan commitment to be reduced in an amount equal to the principal amount so prepaid. After the completion of purchase an Asset Sale, the Company and will its Restricted Subsidiaries may make an Asset Sale Offer prior to the time they are required to do so by the first sentence of this paragraph. If the Company or any Restricted Subsidiary of the Company completes such an Asset Sale Offer with respect to any Net Proceeds, the Company and its Restricted Subsidiaries shall be payable in cashdeemed to have complied with this Section 4.10 with respect to the application of such Net Proceeds (regardless of how much principal amount of Notes are tendered into such offer), and any such Net Proceeds remaining after completion of such Asset Sale Offer may be used by the Company and its Restricted Subsidiaries for any purpose not prohibited by this Indenture. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and other Pari Passu Indebtedness surrendered by holders thereof or lenders thereunder, collectively, exceeds the amount of Excess Proceeds, the Notes to be repurchased shall be selected in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not listed but are in global form, then by lot or otherwise in accordance with the procedures of DTC, or, if the Notes are not listed and not in global form on a pro rata basis, by lot or by such other method as the Trustee in its sole discretion shall deem to be fair and appropriate, and the Company shall select Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate accreted value or principal amount of tendered Notes and Pari Passu Indebtedness. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(fd) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, 4.10 or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations3.10, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its their obligations under Section 3.09 or this Section 4.09 4.10 or Section 3.10 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater fair market value (evidenced by a resolution of (Athe Board of Directors set forth in an Officers' Certificate delivered to the Trustee) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2ii) at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereof. For purposes Equivalents; provided that the amount of this provision, each of the following will be deemed to be cash:
(Ax) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (sheet) or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) Indebtedness of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
and (By) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion.
(b) received), shall be deemed to be cash for purposes of this paragraph. Within 360 days after the receipt of any Net Available Cash Proceeds from an any Asset Sale, the Company (or the applicable any Restricted Subsidiary, as the case may be) may Subsidiary shall apply an amount equal to such Net Cash Proceeds:
Available Cash, at its option, (1a) 41 42 to repay Senior Debt (and to correspondingly reduce commitments with respect thereto in accordance with the Common Terms Agreement and this Indenture; case of revolving borrowings) of the Company or any Restricted Subsidiary or
, in the case of any Asset Sale involving assets of any Restricted Subsidiary that is not a Guarantor, to repay any Indebtedness of such Restricted Subsidiary, or (2b) to make any capital expenditure or to purchase Replacement Assets invest in assets and property (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (Aother than notes, bonds, obligations and securities) such capital expenditure or purchase is consummated within which in the later of (i) 360 days after the receipt good faith judgment of the Net Cash Proceeds from Board of Directors of the related Asset Sale and (ii) 180 days after the date Company will constitute or be a part of a Gaming Business immediately following such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) transaction. Pending the final application of any such Net Cash ProceedsAvailable Cash, the Company may temporarily reduce revolving credit borrowings Senior Debt or otherwise invest the such Net Available Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal . Notwithstanding the foregoing provisions of this paragraph, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash Proceeds in accordance with this paragraph except to the extent that the aggregate Net Available Cash from all Asset Sales which is not applied in accordance with this paragraph exceeds $5.0 million. Any Net Available Cash (other than Net Available Cash not so applied pursuant to the preceding sentence) from Asset Sales that are is not applied or invested as provided in the preceding clauses first sentence of this Section 4.09 paragraph will be deemed to constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10.0 million, the Company will be required to make an offer to all Holders of Notes (an "Asset Sale Offer in accordance with Section 3.09. The Offer") to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages thereon, if any, to, but excluding, to the date of purchase and will be payable purchase, in cashaccordance with the procedures set forth in this Indenture. If any Excess Proceeds remain unapplied after consummation To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company and its any Restricted Subsidiaries Subsidiary may use those any remaining Excess Proceeds for any purpose not otherwise prohibited general corporate purposes. If the aggregate principal amount of Notes surrendered by this IndentureHolders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Alliance Gaming Corp)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(Aa) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; andliability;
(Bb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Saleof receipt, to the extent of the cash or Cash Equivalents received in that conversion.; and
(bc) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this Section 4.10. Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash ProceedsProceeds at its option:
(1) to repay Senior Debt in accordance and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with the Common Terms Agreement and this Indenture; orrespect thereto;
(2) to make acquire all or substantially all of the assets of, or any capital expenditure Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or to purchase Replacement Assets becomes a Restricted Subsidiary of the Company;
(or enter into a binding agreement 3) to make such a capital expenditure or to purchase such Replacement Assetsexpenditure; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.or
(c4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses second paragraph of this Section 4.09 4.10 will constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,00015.0 million, then within ten Business Days after such datefive days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.093.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to, but excluding, to the date of purchase purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) . The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.09 4.10 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Herbst Gaming Inc)
Asset Sales. (a) The Company AirGate, will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (AirGate, or the Restricted Subsidiary, as the case may be) , receives consideration at the time of the such Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and;
(2) such fair market value is determined by AirGate's Board of Directors and, if such fair market value exceeds $5.0 million, is evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee;
(3) at least 9075% of the consideration therefor received by the Company AirGate or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will shall be deemed to be cash:
(Aa) any liabilities, as shown on the Company’s AirGate's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as sheet, of the date of such Asset Sale) of the Company AirGate or any Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) , that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company AirGate or such Restricted Subsidiary from further liability thereforliability; and
(Bb) any securities, notes Notes or other obligations received by the Company AirGate or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company AirGate or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion.; and
(4) if such Asset Sale involves the transfer of Collateral, (a) such Asset Sale complies with the applicable provisions of the Security Documents and (b) all consideration (other than cash) received in such Asset Sale shall be expressly made subject to the Lien under the Security Documents, which Lien shall be junior in priority to a similar Lien granted to secure Senior Debt. Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) AirGate may apply an amount equal to such Net Cash ProceedsProceeds at its option:
(1) to repay Senior Debt in accordance with the Common Terms Agreement and this Indenture; orDebt;
(2) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business which becomes part of, or which is or becomes, a Restricted Subsidiary;
(3) to make any a capital expenditure in assets that are used or to purchase Replacement Assets (or enter into useful in a binding agreement to make such capital expenditure or to purchase such Replacement AssetsPermitted Business; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.or
(c4) to acquire other long-term assets that are used or useful in a Permitted Business. Pending the final application of any such Net Cash Proceeds, the Company AirGate may temporarily reduce revolving credit borrowings or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 paragraph will constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,00010.0 million (an "Excess Proceeds Triggering Event"), then within ten Business Days after such date, the Company AirGate will make an Asset Sale Offer in accordance with Section 3.09Offer. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount amount, plus accrued and unpaid interest and Additional Interestinterest, if any, to, but excluding, to the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries AirGate may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company . AirGate will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.09Indenture, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company AirGate will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.09 Indenture by virtue of such complianceconflict.
Appears in 1 contract
Sources: Indenture (Airgate PCS Inc /De/)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1a) the Company (Company, or the Restricted Subsidiary, as the case may be, receives (i) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or issued, sold or otherwise disposed of and or (Bii) in the case of a lease of assets that constitute an amount equal Asset Sale, a lease providing for rents or other consideration which are no less favorable to the invested cost of Company or the assets sold Subsidiary, as the case may be, than the prevailing market conditions;
(b) Company's Management Committee adopts a resolution evidencing its determination that such consideration constitutes such fair market value, or otherwise disposed ofsuch lease payments are at prevailing market conditions, less depreciationas the case may be, as certified in an Officers' Certificate delivered to the Trustee; and
(2c) at least 9075% or, with the approval of the Management Committee of the Company, 50%, of the consideration therefor received by the Company or such Restricted the Subsidiary is in the form of cashCash; provided, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cashthat:
(Ai) any liabilities, liabilities (as shown on the Company’s 's or such Restricted the Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Salesheet) of the Company or any Restricted the Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeNotes) that are assumed by the transferee of any such of those assets pursuant to under a written customary novation agreement that unconditionally releases the Company or such Restricted Subsidiary the Subsidiary, as the case may be, from further liability thereforwill be deemed to be Cash for purposes of this provision; and
(Bii) any securities, notes or other obligations received by the Company or any such Restricted the Subsidiary from such the transferee that are promptly, but in any event within 30 days of receipt, converted by the Company or such Restricted the Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion.
(b) Within 360 days after will be deemed to be Cash for purposes of this provision. No later than the Business Day following the date of receipt of any Net Cash Proceeds from an Asset Sale, the Company shall apply 100% of such Net Proceeds to (i) repay Indebtedness with respect to Permitted Priority Liens incurred or permitted pursuant to the terms of this Indenture in connection with, and secured by, the asset so sold and pay down the outstanding balance, if any, under the Liquidity Facility (or such lesser amount of the applicable Restricted Subsidiaryoutstanding balance of the Liquidity Facility as approved by at least a majority in outstanding principal amount of the then outstanding Notes) and to permanently reduce the loan commitments thereunder by the amount so prepaid. The Company shall use 50% of any remaining Net Proceeds from any Asset Sale after application pursuant to the prior sentence (or such lesser amount of Net Proceeds as is approved by at least a majority in outstanding principal amount of the then outstanding Notes) as follows: (x) up to $20 million of such amount may be deposited into the Senior Notes Escrow Account to the extent required by the Senior Notes Indenture and, as to the case may be) may apply an amount equal to such Net Cash Proceeds:
extent not so required, into the Escrow Account; and (1y) to repay the extent not deposited into the Senior Debt Notes Escrow Account or the Escrow Account, the Company shall use such amount (the "REMAINING ASSET SALE PROCEEDS") to the extent required by the Senior Notes Indenture to redeem the maximum principal amount of the Senior Notes that may be redeemed out of the Remaining Asset Sale Proceeds in accordance with the Common Terms Agreement and this Indenture; or
(2) Senior Notes Indenture and, if any of such Remaining Asset Sale Proceeds remain after application to make any capital expenditure or such redemption of Senior Notes, the Company shall use such remaining amount to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within redeem the later of (i) 360 days after the receipt maximum principal amount of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date Notes that may be redeemed out of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth moneys in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) accordance with Section 3.8. Pending the final application applications of any Net Cash Proceeds, the Company may reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in governed by the preceding clauses of this Section 4.09 will constitute “Excess Proceeds.” If on any date, the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such dateparagraph, the Company will make an Asset Sale Offer or the applicable Subsidiary may invest such Net Proceeds in accordance with Section 3.09. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
Cash which (e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable required by the Senior Notes Indenture) shall be held in connection with each repurchase an account in which the Senior Notes Trustee shall have a first priority perfected security interest, subject to Permitted Priority Liens, for the benefit of the Holders of Senior Notes pursuant and, subject to an Asset Sale Offer. To the terms of the Senior Notes Intercreditor Agreement, the Notes and, to the extent that not so required, shall be held in an account in which the provisions Trustee shall have a first priority perfected security interest, subject to Permitted Priority Liens, for the benefit of any securities laws or regulations conflict with the provisions Holders of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such complianceNotes.
Appears in 1 contract
Sources: Indenture (Komag Inc /De/)
Asset Sales. (a) The Prior to the Acquisition Closing Date, the Company will shall not consummate an Asset Sale except to the extent necessary to consummate the Acquisition and the transactions contemplated by the Escrow Agreement including the Grant Prideco Assumption and the related release to Grant Prideco, Inc. of the Escrowed Property.
(b) From and after the Acquisition Closing Date, the Company shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (Company, or the Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) in the case of Asset Sales for consideration exceeding $5.0 million, the fair market value is determined by the Company's Board of Directors and (B) evidenced by a resolution of the Company's Board of Directors set forth in an amount equal officer's certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciationTrustee; and
(2iii) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) secured Indebtedness of the Company or a Guarantor and any Indebtedness of a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) is not a Guarantor that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforliability; and
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary contemporaneously, subject to ordinary settlement periods, converts into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received received, in that conversion.
(bc) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such those Net Cash ProceedsProceeds at its option:
(1i) to permanently repay Senior Debt in accordance any secured Indebtedness of the Company or a Guarantor, or any Indebtedness of a Restricted Subsidiary that is not a Guarantor and, if any Indebtedness repaid under this clause (i) is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; provided, however, that for purposes of this clause (i) only, Indebtedness shall include accrued but unpaid interest thereon;
(ii) to acquire all or substantially all of the Common Terms Agreement and this Indentureassets of, or a majority of the Voting Stock of, another Permitted Business;
(iii) to make a capital expenditure; or
(2iv) to make any capital expenditure acquire other long-term assets that are used or to purchase Replacement Assets (or enter into useful in a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Permitted Business. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will paragraph shall constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10.0 million, the Company will shall make a pro rata offer to purchase (an "Asset Sale Offer Offer") to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, to the date of purchase purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis (based upon the aggregate principal amount of the Notes and such other pari passu Indebtedness tendered). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be deemed to have been reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase repurchases of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations4.15, the Company will shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 4.15 by virtue of such compliancethat conflict.
Appears in 1 contract
Sources: Indenture (Grant Prideco Inc)
Asset Sales. (a) The Neither the Company will not, and will not permit nor any of its Restricted Subsidiaries to, shall consummate an Asset Sale unless:
(1i) the Company (or the its Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets sold, leased, conveyed or otherwise disposed of or of the Equity Interests issued or sold or otherwise disposed sold;
(ii) such Fair Market Value is determined by the Company's Board of Directors and (B) evidenced by a resolution of such Board of Directors, which resolution shall, in the case of an amount equal Asset Sale with a Fair Market Value of greater than $10.0 million, be set forth in an Officers' Certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciationTrustee; and
(2iii) (A) at least 9075% of the consideration therefor received by the Company or such its Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or (B) the Asset Sale qualifies as a combination thereofPermitted Telecommunications Exchange Transaction. For purposes of clause (iii) of this provisionparagraph (a), each of the following will be deemed are considered to be cash:
(A) : any liabilities, as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) , that are assumed by the transferee of any such assets or Equity Interests pursuant to a written customary novation agreement that releases released the Company or such Restricted Subsidiary from further liability thereforliability; and
(B) and any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 60 days after such Asset Salefollowing the closing, to the extent of the cash or Cash Equivalents received in that conversion.
(b) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary shall be permitted to apply the applicable Restricted SubsidiaryNet Proceeds, as the case may be) may apply an amount equal to such Net Cash Proceeds:at its option,
(1i) to repay Senior Debt Debt;
(ii) to acquire a majority of the Voting Stock of another Permitted Business which becomes part of, or which is or becomes, a Restricted Subsidiary of the Company;
(iii) to make one or more capital expenditures in accordance with the Common Terms Agreement and this Indentureassets that are used or useful in a Permitted Business; or
(2iv) to make any capital expenditure acquire other assets that are used or to purchase Replacement Assets (or enter into useful in a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Permitted Business. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(dc) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses paragraph (b) of this Section 4.09 4.10 will be deemed to constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds is greater than $100,000,000, then within ten Business Days after such date10.0 million, the Company will shall be required to make an offer to all holders of Notes and all holders of Indebtedness that is equal in right of payment with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem the Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer Offer") to purchase the maximum Accreted Value or principal amount at maturity of Notes and such other Indebtedness that is equal in accordance with Section 3.09right of payment that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the Accreted Value or 100% of the principal amount at maturity, plus accrued and unpaid interest and Additional Interestinterest, if any, to, but excluding, to the date of purchase purchase, as applicable, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other Indebtedness that is equal in right of payment to be purchased pursuant to Section 3.09 on a pro rata basis, by lot or by such method as the Trustee shall deem fair and appropriate. Upon completion of each an Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(fd) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations such rule conflict with the provisions of Section 3.09 or this Section 4.09Indenture relating to Asset Sales, or compliance the Company shall comply with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws rule and regulations and will not be deemed not to have breached its obligations under Section 3.09 or this Section 4.09 relating to such Asset Sale provisions by virtue of such complianceconflict.
Appears in 1 contract
Sources: Indenture (Ipcs Inc)
Asset Sales. (a) The Neither the Company will not, and will not permit nor any of its Restricted Subsidiaries toshall engage in any Asset Sale, consummate an Asset Sale unless:
(1i) the Company (or the such Restricted Subsidiary, as the case may be) , receives consideration at the time of the such Asset Sale at least equal to the greater of (A) the Fair Market Value (evidenced by a resolution of the assets or Equity Interests issued or sold or otherwise disposed Board of and (B) Directors set forth in an amount equal Officers' Certificate delivered to the invested cost Trustee) of the assets sold or otherwise disposed of, less depreciation; and
(2ii) except in the case of Permitted Asset Swaps, at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents; provided, Cash Equivalents or Replacement Assets or a combination thereof. For purposes however, that the amount of this provision, each of the following will be deemed to be cash:
(Aa) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on in the Company’s consolidated balance sheet as of the date of such Asset Salenotes thereto) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any Note GuaranteeNotes) that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
and (Bb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion.
(b) so received), shall be deemed to be cash for purposes of this provision. Within 360 days after the receipt of any the Net Cash Proceeds from an Asset Sale, the Company (or shall apply the applicable Restricted Subsidiary, as the case may be) may apply an amount equal Net Proceeds from such Asset Sale to such Net Cash Proceeds:
(1) to repay Senior Debt in accordance with the Common Terms Agreement and this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and permanently reduce Senior Indebtedness, (ii) 180 days after permanently reduce Indebtedness of the Restricted Subsidiary that sold properties or assets in the Asset Sale, or (iii) acquire properties and assets to replace the properties and assets that were the subject of the Asset Sale or properties and assets that will be used in the same or a similar line of business as the Company was engaged in on the date of such binding agreement and (B) if such capital expenditure this Indenture or purchase is not consummated within the period set forth in subclause (A)reasonable extensions, the amount not so applied will be deemed to be Excess Proceeds.
(c) developments or expansions thereof or activities ancillary thereto. Pending the final application of any such Net Cash Proceeds, the Company may reduce revolving credit borrowings or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from the Asset Sales Sale that are not applied or invested as provided in the preceding clauses first sentence of this Section 4.09 paragraph will be deemed to constitute “"Excess Proceeds.” If on any date, " When the aggregate cumulative amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date5,000,000, the Company will shall make an Asset Sale Offer in accordance with Section 3.09. The offer to all Holders of Notes to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to, but excluding, thereon to the date of purchase and will be payable purchase, in cash. If any Excess Proceeds remain unapplied after consummation of accordance with the procedures set forth in this Section 4.20 (an "Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer"). To the extent that the provisions aggregate amount of any securities laws or regulations conflict with Notes tendered pursuant to an Asset Sale Offer is less than the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsExcess Proceeds, the Company will comply with may use such deficiency for general corporate purposes in any manner provided by this Indenture. If the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 aggregate principal amount of Notes surrendered by virtue of such compliance.Holders thereof exceeds
Appears in 1 contract
Sources: Indenture (Mmi Products Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater fair market value (evidenced by a resolution of (Athe Board of Directors set forth in an Officers' Certificate delivered to the Trustee) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2ii) at least 9075% (100% in the case of lease payments) of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereof. For purposes Equivalents; provided that the amount of this provision, each of the following will be deemed to be cash:
(Aa) any liabilities, liabilities (as shown on the Company’s 's, or such Restricted Subsidiary’s 's, most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Salesheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
and (Bb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion.
(b) received), shall be deemed to be cash for purposes of this provision. Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
, at its option, to (1i) to repay Senior Debt in accordance with permanently reduce Indebtedness under the Common Terms Agreement and this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement AssetsNew Credit Facility; provided that (A) such capital expenditure or purchase permanent reduction is consummated within accompanied by a corresponding reduction in the later of (i) 360 days after lending commitments under the receipt of the Net Cash Proceeds from the related Asset Sale and New Credit Facility, (ii) 180 days after acquire another business or other long-term assets, in each case, in, or used or useful in, the same or a similar line of business as the Company or any of its Subsidiaries was engaged in on the date of this Indenture or any reasonable extension or expansion thereof (including the Capital Stock of another Person engaged in such binding agreement business; provided such other Person is, or immediately after and giving effect to such acquisition shall become, a Wholly-Owned Subsidiary of the Company (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (Aother than a Receivables Subsidiary)), or (iii) reimburse the amount not so applied will be deemed Company or any of its Subsidiaries for expenditures made, and costs incurred, to be Excess Proceeds.
(c) repair, rebuild, replace or restore property subject to loss, damage or taking to the extent that the Net Proceeds consist of insurance or condemnation or similar proceeds received on account of such loss, damage or taking. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings Indebtedness under the New Credit Facility or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any cash or Cash Equivalents. Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses first sentence of this Section 4.09 will paragraph shall be deemed to constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date5.0 million, the Company will shall be required to make an Asset Sale Offer in accordance with Section 3.09. The to purchase the maximum principal amount (that is an integral multiple of $1,000) of Notes that may be purchased out of the Excess Proceeds, at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to, but excluding, thereon to the date of purchase and will be payable purchase, in cashaccordance with the procedures set forth in Article 3 hereof. If any Excess Proceeds remain unapplied after consummation To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company and its Restricted Subsidiaries (or such Subsidiary) may use those any remaining Excess Proceeds for any purpose not otherwise prohibited general corporate purposes. If the aggregate principal amount of Notes surrendered by this IndentureHolders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased). Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero.
(e) . Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as Subsidiaries shall be permitted to consummate one or more Asset Sales with respect to assets or properties with an aggregate fair market value (evidenced by a whole, will be governed by resolution of the provisions Board of Section 4.14 and/or Directors set forth in an Officers' Certificate delivered to the provisions Trustee) not in excess of Section 5.01 and not by $5.0 million with respect to all such Asset Sales made subsequent to the provisions date of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict Indenture without complying with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliancepreceding paragraphs.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not ----------- permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2ii) at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereof. For purposes Equivalents; provided -------- that the amount of this provision, each of the following will be deemed to be cash:
(Ax) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Salesheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeSecurities or, in the case of liabilities of a Guarantor, the Security Guarantee of such Guarantor) that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases assets, or from which the Company or such and its Restricted Subsidiary from further liability therefor; and
Subsidiaries are released in writing by the creditor with respect thereto, and (By) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash received) within 180 days after receipt shall be deemed, in each case, to be cash for purposes of this provision; provided, further, however, that this clause (ii) shall not -------- ------- ------- apply to any sale of Equity Interests of or Cash Equivalents received other Investments in that conversion.
(b) Unrestricted Subsidiaries. Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
, at its option, (1a) to repay Senior Debt, Debt of any Restricted Subsidiary or Pari Passu Debt (other than Debt owed to the Company or a Subsidiary of the Company, and provided that if the Company -------- shall so reduce Pari Passu Debt, it will equally and ratably make an Asset Sale Offer (in accordance with the Common Terms Agreement and this Indenture; or
(2procedures set forth in Section 3.09 for an Asset Sale Offer) to make all Holders), (b) to invest in properties and assets that will be used or useful in the business of the Company or any of its Subsidiaries or (c) to the acquisition of a controlling interest in another business, the making of a capital expenditure or to purchase Replacement Assets (the acquisition of other assets, in each case, that will be used or enter into a binding agreement to make such capital expenditure useful in the business of the Company or to purchase such Replacement Assetsany of its Restricted Subsidiaries; provided that if during such 360-day period the Company or a -------- Restricted Subsidiary enters into a definitive agreement committing it to apply such Net Proceeds in accordance with the requirements of clause (Ab) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending such 360-day period will be extended for a period not to exceed 180 days with respect to the final application amount of any Net Cash ProceedsProceeds so committed until required to be paid in accordance with such agreement (or, the Company may reduce revolving credit borrowings or otherwise invest the if earlier, until termination of such agreement). Any Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses first sentence of this Section 4.09 paragraph will be deemed to constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10 million, the Company will shall (i) make an Asset Sale Offer offer to all Holders of Securities, and (ii) 57 prepay, purchase or redeem (or make an offer to do so) any other Pari Passu Debt of the Company in accordance with Section 3.09. The provisions requiring the Company to prepay, purchase or redeem such Debt with the proceeds from any Asset Sales (or offer to do so), pro rata in proportion to the respective principal amounts (or accreted value, as applicable) of the Securities and such other Debt required to be prepaid, purchased or redeemed or tendered for, in the case of the Securities pursuant to such offer (an "Asset Sale Offer"), to purchase the maximum principal amount of Securities that may be purchased out of such pro rata portion of the Excess Proceeds, at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the their principal amount plus accrued and unpaid interest and Additional InterestLiquidated Damages (or, if prior to the Full Accretion Date, 100% of the Accreted Value thereof on the date of purchase, plus Liquidated Damages (if any, to, but excluding, ) to the date of purchase subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date, in accordance with the procedures set forth in Section 3.09). To the extent that the aggregate principal amount (or, if prior to the Full Accretion Date, the aggregate Accreted Value) of Securities and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of Pari Passu Debt tendered pursuant to an Asset Sale OfferOffer or other offer is less than the Excess Proceeds, the Company and its Restricted Subsidiaries may use those any remaining Excess Proceeds for any purpose not otherwise prohibited general corporate purposes. If the aggregate principal amount (or Accreted Value, as the case may be) of Securities surrendered by this IndentureHolders thereof exceeds the pro rata portion of such Excess Proceeds to be used to purchase Securities, the Trustee shall select the Securities to be purchased on a pro rata basis. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Sailors Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; andliability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion.; and
(bC) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this Section 4.10. Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) , may apply an amount equal to such Net Cash Proceeds:
(1) to repay Senior Debt in accordance Indebtedness incurred pursuant to clause (1) of the definition of “Permitted Debt” (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with the Common Terms Agreement and this Indenture; orrespect thereto);
(2) to make acquire all or substantially all of the assets of, or any capital expenditure Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or to purchase Replacement Assets becomes a Restricted Subsidiary of the Company;
(or enter into a binding agreement 3) to make such a capital expenditure or to purchase such Replacement Assetsexpenditure; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.or
(c4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses second paragraph of this Section 4.09 4.10 will constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,00010.0 million, then within ten Business Days after such date30 days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to, but excluding, to the date of purchase purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) . The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.09 4.10 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Ubiquitel Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (Company, or the Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) in the case of Asset Sales for consideration exceeding $5.0 million, the fair market value is determined by the Company's Board of Directors and (B) evidenced by a resolution of the Company's Board of Directors set forth in an amount equal officer's certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciationTrustee; and
(2iii) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) secured Indebtedness of the Company or a Guarantor and any Indebtedness of a Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) is not a Guarantor that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforliability; and
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary contemporaneously, subject to ordinary settlement periods, converts into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received received, in that conversion.
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such those Net Cash ProceedsProceeds at its option:
(1i) to permanently repay Senior Debt in accordance any secured Indebtedness of the Company or a Guarantor, or any Indebtedness of a Restricted Subsidiary that is not a Guarantor and, if any Indebtedness repaid under this clause (i) is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; provided, however, that for purposes of this clause (i) only, Indebtedness shall include accrued but unpaid interest thereon;
(ii) to acquire all or substantially all of the Common Terms Agreement and this Indentureassets of, or a majority of the Voting Stock of, another Permitted Business;
(iii) to make a capital expenditure; or
(2iv) to make any capital expenditure acquire other long-term assets that are used or to purchase Replacement Assets (or enter into useful in a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Permitted Business. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(dc) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will paragraph shall constitute “"Excess Proceeds.” If on any date, the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date, the Company will make an Asset Sale Offer in accordance with Section 3.09. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance." When the
Appears in 1 contract
Sources: Indenture (Grant Prideco Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater of (A) the Fair Market Value (as determined by the Board of Directors) of the assets or Equity Interests issued or sold or otherwise disposed of; provided that this clause (i) shall not apply to an Asset Sale resulting solely from a foreclosure or sale by a third party upon assets or property subject to a Lien not prohibited by this Indenture;
(ii) where such Fair Market Value exceeds $25.0 million, the Company’s Board of and (B) Directors’ determination of such Fair Market Value is set forth in an amount equal Officers’ Certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciationTrustee; and
(2iii) at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will shall be deemed to be cashCash Equivalents:
(A) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (sheet, or as would be shown on the Company’s consolidated or such Restricted Subsidiary’s balance sheet as of on the date of such Asset Sale) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities liabilities, Indebtedness that are is by their its terms subordinated to the Notes or any Note GuaranteeGuarantee and liabilities to the extent owed to the Company or any Affiliate of the Company) that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted (including by way of any Monetization Transaction) by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion) within 120 days of such Asset Sale.
(b) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash ProceedsProceeds at its option:
(1i) to repay Senior Debt in accordance and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(ii) to acquire all or substantially all of the Common Terms Agreement and assets of, or a majority of the Voting Stock of, another Permitted Business (including by means of a merger, consolidation or other business combination permitted under this Indenture) to be held, commencing on the date of such acquisition, as or in a Restricted Subsidiary of the Company;
(iii) to pay for or purchase Replacement Assets; or
(2iv) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt combination of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) foregoing. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(dc) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will 4.10(b) above shall constitute “Excess Proceeds.” If on any date, Within 30 days after the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date25.0 million, the Company will shall make an Asset Sale Offer in accordance offer (an “Asset Sale Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with Section 3.09the Notes or any Note Guarantee containing provisions similar to those set forth by this Indenture with respect to offers to purchase with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, to the date of purchase purchase, and will shall be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes and such other pari passu Indebtedness shall be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(fd) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale Offer provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or the Asset Sale Offer provisions of this Section 4.09 Indenture by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1a) the Company (Company, or the Restricted Subsidiary, as the case may be, receives (i) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or issued, sold or otherwise disposed of and or (Bii) in the case of a lease of assets that constitute an amount equal Asset Sale, a lease providing for rents or other consideration which are no less favorable to the invested cost of Company or the assets sold Subsidiary, as the case may be, than the prevailing market conditions;
(b) Company's Management Committee adopts a resolution evidencing its determination that such consideration constitutes such fair market value, or otherwise disposed ofsuch lease payments are at prevailing market conditions, less depreciationas the case may be, as certified in an Officers' Certificate delivered to the Trustee; and
(2c) at least 9075% or, with the approval of the Management Committee of the Company, 50%, of the consideration therefor received by the Company or such Restricted the Subsidiary is in the form of cashCash; provided, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cashthat:
(Ai) any liabilities, liabilities (as shown on the Company’s 's or such Restricted the Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Salesheet) of the Company or any Restricted the Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeNotes) that are assumed by the transferee of any such of those assets pursuant to under a written customary novation agreement that unconditionally releases the Company or such Restricted Subsidiary the Subsidiary, as the case may be, from further liability thereforwill be deemed to be Cash for purposes of this provision; and
(Bii) any securities, notes or other obligations received by the Company or any such Restricted the Subsidiary from such the transferee that are promptly, but in any event within 30 days of receipt, converted by the Company or such Restricted the Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion.
(b) Within 360 days after will be deemed to be Cash for purposes of this provision. No later than the Business Day following the date of receipt of any Net Cash Proceeds from an Asset Sale, the Company shall apply 100% of such Net Proceeds to repay Indebtedness with respect to Permitted Priority Liens incurred or permitted pursuant to the terms of this Indenture in connection with, and secured by, the asset so sold and pay down the outstanding balance, if any, under the Liquidity Facility (or such lesser amount of the applicable Restricted Subsidiary, outstanding balance of the Liquidity Facility as approved by at least a majority in outstanding principal amount of the case then outstanding Notes) and to permanently reduce the loan commitments thereunder by the amount so prepaid. The Company shall use 50% of any remaining Net Proceeds from any Asset Sale after application pursuant to the prior sentence (or such lesser amount of Net Proceeds as are approved by at least a majority in outstanding principal amount of the then outstanding Notes) as follows: (x) up to $20 million of such amount may be) may apply an amount equal to such Net Cash Proceeds:
be deposited into the Escrow Account; and (1y) to repay Senior Debt the extent not deposited into the Escrow Account, the Company shall use such amount (the "REMAINING ASSET SALE PROCEEDS") to redeem the maximum principal amount of the Notes that may be redeemed out of the Remaining Asset Sale Proceeds in accordance with the Common Terms Agreement and this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Section 3.8. Pending the final application applications of any Net Cash Proceeds, the Company may reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in governed by the preceding clauses of this Section 4.09 will constitute “Excess Proceeds.” If on any date, the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such dateparagraph, the Company will make or the applicable Subsidiary may invest such Net Proceeds in Cash which shall be held in an Asset Sale Offer account in accordance with Section 3.09. The offer price in any Asset Sale Offer will be equal which the Trustee shall have a first priority perfected security interest, subject to 100% Permitted Priority Liens, for the benefit of the principal amount plus accrued and unpaid interest and Additional InterestHolders of Notes and, if any, to, but excludingsubject to the Senior Notes Intercreditor Agreement, the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zeroJunior Notes.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Komag Inc /De/)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater fair market value (evidenced by a resolution of (Athe Board of Directors set forth in an Officers' Certificate delivered to the Trustee) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2ii) at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, (a) cash or Cash Equivalents or Replacement Assets or a combination thereof. For purposes (b) Qualified Proceeds; provided, that the aggregate fair market value of Qualified Proceeds that may be received pursuant to this clause (ii)(b) shall not exceed an aggregate of $10.0 million after the date of this provisionIndenture; provided, each further, that the amount of the following will be deemed to be cash:
(Ax) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
and (By) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly (and in any event, in not more than 60 days) converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversionreceived), shall be deemed to be cash for purposes of this provision.
(b) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1) Proceeds at its option to repay Senior Debt in accordance with the Common Terms Agreement and this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after permanently retire revolving indebtedness or other obligations either under the receipt of Revolving Credit Agreement or the Net Cash Proceeds from the related Asset Sale Gold Consignment Agreement (or a substantially similar gold consignment agreement pursuant to Section 4.09(b)(iv)(y)(b) hereof) or a combination thereof (and to correspondingly permanently reduce revolving borrowing commitments or revolving consignment commitments or a combination thereof with respect thereto) or (ii) 180 days the acquisition of Capital Stock of a person that is or becomes as a result of such acquisition a Wholly-Owned Subsidiary, the making of capital expenditures or the acquisition of other assets (other than Investments) that are or promptly after such acquisition will be used in the business engaged in by the Company or any of its Subsidiaries on the date of such binding agreement and (B) if such capital expenditure hereof or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) a business reasonably related thereto. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings Senior Revolving Debt or otherwise invest the make an Investment of such Net Cash Proceeds in any manner that is not prohibited by the terms of this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses first sentence of this Section 4.09 4.10(b) will be deemed to constitute “"Excess Proceeds.” If on any date, ". Within 45 days after the first day of a calendar month in which the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10.0 million, the Company will shall make an offer to all Holders of Notes (an "Asset Sale Offer Offer") in accordance with the provisions of Section 3.09. The 3.09 hereof to purchase the maximum principal amount of Notes that may be purchased out of such Excess Proceeds, at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interestthereon, if any, to, but excluding, to the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offerpurchase. To the extent that the provisions aggregate amount of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of Notes tendered pursuant to any such laws or regulationsoffer is less than the remaining Excess Proceeds, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached or any of its obligations under Section 3.09 Subsidiaries may use any remaining Excess Proceeds for general corporate purposes or this Section 4.09 by virtue otherwise make an Investment of such complianceremaining amounts in any manner that is not prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by Holders (or holders) thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater fair market value (evidenced by a resolution of (Athe Board of Directors set forth in an Officers' Certificate delivered to the Trustee) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2ii) at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereof. For purposes Equivalents; provided that the amount of this provision, each of the following will be deemed to be cash:
(Ax) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Salesheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
and (By) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash) received within ten business days after the consummation of such Asset Sale, shall be deemed to be cash or Cash Equivalents received in that conversion.
(b) for purposes of this provision. Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
, at its option, (1a) to repay Senior Debt Indebtedness in accordance with respect of one or more Credit Facilities and permanently reduce the Common Terms Agreement and this Indenture; or
maximum commitments thereunder (2provided that such reductions shall have no effect on the amount of Indebtedness permitted to be incurred pursuant to clause (a)(y) of the second paragraph of Section 4.09 hereof) and/or (b) to make any the acquisition of a controlling interest in, or all or substantially all of the assets of, another business or the making of a capital expenditure or to purchase Replacement Assets (or enter into in a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Permitted Business. Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce revolving credit borrowings Indebtedness under any Credit Facility or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this the Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses first sentence of this Section 4.09 paragraph will be deemed to constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10.0 million, the Company will be required to make an Asset Sale Offer offer (pro rata in proportion to the principal amount (or accreted value, if applicable) outstanding in respect of any asset sale offer required by the terms of any pari passu Indebtedness incurred in accordance with Section 3.09. The the Indenture) to all holders of Notes (an "Asset Sale Offer") to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages thereon, if any, to, but excluding, to the date of purchase and will be payable purchase, in cashaccordance with the procedures set forth in the Indenture. If any Excess Proceeds remain unapplied after consummation To the extent that the aggregate principal amount of Notes tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds (after giving effect to any pro rata payment with respect to pari passu Indebtedness as aforesaid), the Company and its Restricted Subsidiaries may use those any remaining Excess Proceeds for any purpose not otherwise prohibited general corporate purposes. If the aggregate principal amount of Notes surrendered by this IndentureHolders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Parent Entity and the Company will shall not, and will the Company shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
: (1i) the Company (or the Restricted SubsidiarySubsidiary or Parent Entity, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of, (ii) the fair market value is determined by the Company's Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2iii) at least 9075% of the consideration received therefor received by the Company or such Restricted Subsidiary or Parent Entity is in the form of cashcash or Cash Equivalents; provided, Cash Equivalents or Replacement Assets or a combination thereof. For purposes however, that the amount of this provision, each of the following will be deemed to be cash:
(Ax) any liabilities, as shown on the Company’s 's or such Restricted Subsidiary’s 's or Parent Entity's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary or Parent Entity (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary or Parent Entity from further liability therefor; and
and (By) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary or Parent Entity from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary or Parent Entity into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion.
(b) , shall be deemed to be cash for purposes of this provision. A transfer of assets by the Company to a Subsidiary Guarantor or by a Subsidiary Guarantor to the Company or to another Subsidiary Guarantor, and an issuance of Equity Interests by a Restricted Subsidiary to the Company or to another Restricted Subsidiary, shall not be deemed to be an Asset Sale. Any Restricted Payment that is permitted by Section 4.07 hereof shall not be deemed to be an Asset Sale. Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company may apply (or cause to be applied) the applicable Restricted SubsidiaryNet Proceeds from such Asset Sale, as at its option (a) to Repay Senior Debt and, if the case may be) may apply an amount equal Senior Debt repaid is revolving credit Indebtedness, to correspondingly permanently reduce commitments with respect to such Net Cash Proceeds:
revolving credit Indebtedness, (1b) to repay Senior Debt in accordance with acquire all or substantially all of the Common Terms Agreement and this Indenture; or
assets of, or a majority of the Voting Stock of, another Permitted Business, (2c) to make any capital expenditure a Capital Expenditure or (d) to purchase Replacement Assets (acquire or enter into make capitalized repairs to other long-term assets that are used or useful in a binding agreement to make such capital expenditure Permitted Business. Notwithstanding the foregoing, neither the Company nor one or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later more of (i) 360 days after the receipt of the Net Cash Proceeds from the related its Subsidiaries shall engage in an Asset Sale and (ii) 180 days after in which the date of such binding agreement and (B) if such capital expenditure purchaser or purchase transferee is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Parent Entity. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings Indebtedness or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from such Asset Sales Sale that are not finally applied or invested as provided in the preceding clauses first sentence of this Section 4.09 will paragraph shall be deemed to constitute “"Excess Proceeds.” If " Within five Business Days of each date on any date, which the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date5.0 million, the Company will make an shall commence a pro rata Asset Sale Offer pursuant to Section 3.09 hereof to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to, but excluding, to the date of purchase purchase, in accordance with the procedures set forth in Section 3.09 hereof, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggreate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be deemed to be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Appleton Papers Inc/Wi)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale equal to the greater of (Ai) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (Bii) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 90% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will shall be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) ), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion.
(b) . Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1) to repay Senior Debt in accordance with the Common Terms Agreement and this IndentureDebt; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (Aa) such capital expenditure or purchase is consummated within the later of (ix) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (iiy) 180 days after the date of such binding agreement and (Bb) if such capital expenditure or purchase is not consummated within the period set forth in subclause (Aa), the amount not so applied will be deemed to be Excess Proceeds.
Proceeds (c) as defined below)). Pending the final application of any Net Cash Proceeds, the Company may reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) . An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses paragraphs of this Section 4.09 4.10 will constitute “Excess Proceeds.” If on any date, the aggregate amount of Excess Proceeds exceeds $100,000,00025.0 million, then within ten Business Days after such date, the Company will make an offer (an “Asset Sale Offer Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.093.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, to the date of purchase purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes and such other pari passu Indebtedness to be purchased shall be determined on a pro rata basis and, if applicable, with respect to the Notes, with such adjustments that may be deemed appropriate by the Trustee so that only Notes in denominations of $100,000 or whole multiples of $1,000 in excess thereof will be purchased. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) . Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 4.15 and/or the provisions of Section 5.01 hereof and not by the provisions of this Section 4.09.
(f) 4.10. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.094.10, or compliance with the provisions of Section 3.09 hereof or this Section 4.09 4.10 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.09 4.10 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Cheniere Energy Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of and of;
(Bii) an amount equal to such fair market value is determined in accordance with the invested cost provisions of the assets sold or otherwise disposed of, less depreciation; anddefinition of fair market value;
(2iii) at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For of cash, Cash Equivalents or Replacement Assets; provided that, for purposes of this provisionSection 4.10(a)(iii), each of the following will shall be deemed to be cash:
(A) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Salesheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities liabilities, Indebtedness that are is by their its terms contractually subordinated in right of payment to the Notes or any Note GuaranteeGuarantee and liabilities to the extent owed to the Company or any Restricted Subsidiary of the Company) that are assumed by the transferee of any such assets or Equity Interests pursuant to a written novation an agreement that releases the Company or such Restricted Subsidiary Subsidiary, as the case may be, from further liability thereforliability; and
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary Subsidiary, as the case may be, from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 180 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion); and
(iv) in the case of an Asset Sale that constitutes a Sale of Notes Collateral or a Sale of a Guarantor, the Company (or the applicable Guarantor, as the case may be) deposits the Net Proceeds therefrom as collateral in a segregated account or accounts (each, a “Collateral Proceeds Account”) held by or under the control of (for purposes of the Uniform Commercial Code) the Collateral Trustee or its agent to secure all Secured Obligations pursuant to arrangements reasonably satisfactory to the Collateral Trustee; provided that no such deposit will be required except to the extent the aggregate Net Proceeds from all Sales of Notes Collateral and Sales of a Guarantor that are not held in a Collateral Proceeds Account and have not previously been applied in accordance with Section 4.10(c) exceeds $5.0 million.
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, other than a Sale of Notes Collateral or a Sale of a Guarantor, the Company or such Restricted Subsidiary may apply such Net Proceeds at its option and to the extent it so elects:
(i) to repay, repurchase or redeem Priority Lien Obligations (including Obligations under the Notes) or ABL Debt Obligations;
(ii) to repay any Indebtedness secured by a Permitted Prior Lien;
(iii) to repay Indebtedness and other obligations of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary;
(iv) to repay other Indebtedness of either of the Issuers or any Guarantor (other than any Disqualified Stock or any Indebtedness that is contractually subordinated in right of payment to the Notes), other than Indebtedness owed to the Company or a Restricted Subsidiary of the Company; provided that the Issuers shall equally and ratably redeem or repurchase the Notes in accordance with Section 3.07, through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase the 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;
(v) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(vi) to purchase Replacement Assets or make a capital expenditure in or that is used or useful in a Permitted Business; or
(vii) any combination of the foregoing; provided that the Company will be deemed to have complied with clauses (v) and (vi) of this Section 4.10(b) if and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or rejected a binding agreement to acquire the assets or Capital Stock of a Permitted Business, purchase Replacement Assets or make a capital expenditure in compliance with clauses (v) and (vi) of this Section 4.10(b), and that acquisition, purchase or capital expenditure is thereafter completed within 90 days after the end of such 365-day period. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Within 365 days after the receipt of any Net Proceeds from an Asset Sale that constitutes a Sale of Notes Collateral or a Sale of a Guarantor, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1i) to purchase other assets that would constitute Notes Collateral;
(ii) to purchase Capital Stock of another Permitted Business if, after giving effect to such purchase, the Permitted Business becomes a Guarantor or is merged into or consolidated with either of the Issuers or any Guarantor;
(iii) to make a capital expenditure with respect to assets that constitute Notes Collateral;
(iv) to repay Senior Debt Indebtedness secured by a Permitted Prior Lien on any Notes Collateral that was sold in accordance with the Common Terms Agreement and this Indenturesuch Asset Sale; or
(2v) any combination of the foregoing; provided that the Company will be deemed to make any capital expenditure have complied with clauses (i), (ii) and (iii) of this Section 4.10(c) if, and to the extent that, within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into and not abandoned or to purchase Replacement Assets (or enter into rejected a binding agreement to purchase assets that constitute Notes Collateral or Capital Stock of another Permitted Business or to make such a capital expenditure with respect to assets that constitute Notes Collateral in compliance with clauses (i), (ii) and (iii) of this Section 4.10(c), and that purchase or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated thereafter completed within the later of (i) 360 90 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date end of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending the final application of any Net Cash Proceeds, the Company may reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture365-day period.
(d) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will 4.10(b) or Section 4.10(c) shall constitute “Excess Proceeds.” If on any date, Within 10 days after the aggregate amount of Excess Proceeds (including any Excess Proceeds held in the Collateral Proceeds Account) exceeds $100,000,000, then within ten Business Days after such date10.0 million, the Company will Issuers shall make an offer (an “Asset Sale Offer Offer”) to all Holders of Notes and all holders of other Priority Lien Debt containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other Priority Lien Debt that may be purchased out of the Excess Proceeds. The offer price for the Notes and any other Priority Lien Debt in any Asset Sale Offer will be equal to 100% of the principal amount of the Notes and such other Priority Lien Debt purchased, plus accrued and unpaid interest and Additional Interest, Special Interest (if any, to, but excluding, ) on the Notes and any other Priority Lien Debt to the date of purchase purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries Issuers may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other Priority Lien Debt tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds (including any Excess Proceeds held in the Collateral Proceeds Account), the Notes and such other Priority Lien Debt shall be purchased on a pro rata basis based on the principal amount of Notes and such other Priority Lien Debt tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its their obligations under Section 3.09 or the Asset Sale provisions of this Section 4.09 Indenture by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Solo Cup CO)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater fair value (evidenced by a resolution of (Athe Board of Directors set forth in an Officers' Certificate delivered to the Trustee) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2ii) at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes ; provided that the amount of this provision, each of the following will be deemed to be cash:
(Ax) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) in notes thereto), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
and (By) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversionreceived), shall be deemed to be cash for purposes of this provision.
(b) Notwithstanding the foregoing, the Company and its Restricted Subsidiaries may engage in Asset Swaps (which shall not be deemed to be Asset Sales for purposes of this Section 4.10); provided that, immediately after giving effect to such Asset Swap, the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Indebtedness to Adjusted Operating Cash Flow Ratio set forth in Section 4.09(a) hereof.
(c) Within 360 180 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted SubsidiarySubsidiary may, as the case may be) may at its option, apply an amount equal to such Net Cash Proceeds:
Proceeds (1i) to repay Senior Debt permanently reduce Indebtedness outstanding pursuant to any Bank Facility (and to permanently reduce the commitments thereunder by a corresponding amount), (ii) to permanently reduce Indebtedness of any of the Company's Restricted Subsidiaries or (iii) to the acquisition by the Company or any of its Restricted Subsidiaries of another business, the making of a capital expenditure or the acquisition of other long-term assets, in each case, in a Permitted Business; provided, however, that if the Company or any Restricted Subsidiary enters into a legally binding agreement with an entity that is not an Affiliate of the Company to reinvest such Net Proceeds in accordance with the Common Terms Agreement and this Indenture; or
clause (2iii) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 180 days after the receipt thereof, the provisions of this Section 4.10 will be satisfied so long as such binding agreement is consummated within one year after the receipt of such Net Cash Proceeds. If any such legally binding agreement to reinvest such Net Proceeds from is terminated, then the related Company may, within 360 days of such Asset Sale and Sale, apply such Net Proceeds as provided in clauses (i), (ii) 180 days after or (iii) above (without regard to the date of such binding agreement and proviso contained in clause (Biii) if such capital expenditure or purchase is not consummated within the period set forth in subclause (Aabove), the amount not so applied will be deemed to be Excess Proceeds.
(c) . Pending the final application of any such Net Cash Proceeds, the Company or the applicable Restricted Subsidiary may temporarily reduce revolving credit borrowings Indebtedness pursuant to any Bank Facility or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
. A reduction of Indebtedness pursuant to any Bank Facility is not "permanent" for purposes of clause (di) An of this Section 4.10(c) if an amount equal to any the amount of such reduction is reborrowed and used to make an acquisition described in clause (iii) of this Section 4.10(c) within the time period specified in this Section 4.10. Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses first sentence of this Section 4.09 4.10(c) will be deemed to constitute “"Excess Proceeds.” If "
(d) Within five days of each date on any date, which the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date25.0 million, the Company will be required to make an offer to all Holders of Notes and the Holders of Pari Passu Debt, to the extent required by the terms thereof (an "Asset Sale Offer in accordance with Section 3.09. The Offer") to purchase the maximum principal amount of Notes and Pari Passu Debt that may be purchased out of the Excess Proceeds, at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount plus thereof plus, in each case, accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to, but excluding, to the date of purchase, in accordance with the procedures set forth in Section 3.09 or the agreements governing Pari Passu Debt, as applicable; provided, however, that the Company may only purchase and will be payable Pari Passu Debt in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale OfferOffer that was issued pursuant to an indenture having a provision substantially similar to this Section 4.10.
(e) To the extent that the aggregate amount of Notes and Pari Passu Debt tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company and its Restricted Subsidiaries may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. general corporate purposes.
(f) If the aggregate principal amount of Notes and Pari Passu Debt surrendered exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and Pari Passu Debt to be purchased on a pro rata basis, based upon the principal amount thereof surrendered in such Asset Sale Offer.
(g) Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company C▇▇▇▇▇▇ will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company C▇▇▇▇▇▇ (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets assets, rights or Equity Interests of a Subsidiary of C▇▇▇▇▇▇ issued or sold or otherwise disposed of and of;
(B2) the Fair Market Value is set forth in an amount equal Officers’ Certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciationTrustee; and
(23) at least 9075% of the consideration therefor received in the Asset Sale by the Company C▇▇▇▇▇▇ or such Restricted Subsidiary is in the form of cash, Cash Equivalents cash or Replacement Permitted Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s C▇▇▇▇▇▇’▇ or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as sheet, of the date of such Asset Sale) of the Company C▇▇▇▇▇▇ or any Restricted Subsidiary (other than contingent liabilities and liabilities, liabilities that are by their terms subordinated to the Notes or any Note GuaranteeGuarantee and liabilities to the extent owed to C▇▇▇▇▇▇ or any Restricted Subsidiary of C▇▇▇▇▇▇) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company C▇▇▇▇▇▇ or such Restricted Subsidiary from further liability thereforliability; and
(B) any securities, notes or other obligations received by the Company C▇▇▇▇▇▇ or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company C▇▇▇▇▇▇ or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion.
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (C▇▇▇▇▇▇ or the applicable Restricted Subsidiary, as the case may be) Subsidiary may apply an amount equal to such those Net Cash Proceeds:
(1) to repay Senior Debt or prepay secured Indebtedness, and Obligations in accordance with respect thereof, of C▇▇▇▇▇▇ or any Restricted Subsidiary of C▇▇▇▇▇▇, including secured Indebtedness and Obligations under any Credit Facility, other than Indebtedness or other Obligations that are subordinated to the Common Terms Agreement and this Indenture; orNotes;
(2) to make any capital expenditure acquire all or to purchase Replacement Assets substantially all of the assets of, or a majority of the Voting Stock of, another Oil and Gas Business (or enter into a legally binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure assets or purchase is consummated Voting Stock within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 90 days after the date of such binding agreement; provided, however, that if any such legally binding agreement and to invest such Net Proceeds is terminated, then C▇▇▇▇▇▇ or the applicable Restricted Subsidiary may within 30 days of such termination or 365 days after the receipt of any Net Proceeds from the applicable Asset Sale, whichever is later, invest such Net Proceeds as provided in clause (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A1), (3) or (4) of this paragraph (b) or to acquire all or substantially all of the amount assets of, or a majority of the Voting Stock of, another Oil and Gas Business; provided, further, that, if the Net Proceeds are not so applied within that time period, they will immediately be deemed to be Excess Proceeds.Proceeds (as defined below);
(c3) to make a capital expenditure; or
(4) to acquire Permitted Assets. Pending the final application of any Net Cash Proceeds, the Company C▇▇▇▇▇▇ or such Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(dc) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses paragraph (b) of this Section 4.09 4.10 will constitute “Excess Proceeds.” If on any date, ”. When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such dateUS$20.0 million, the Company Issuer will make an offer (an “Asset Sale Offer Offer”) to all Holders (excluding C▇▇▇▇▇▇ or any of its Restricted Subsidiaries) and all holders (excluding C▇▇▇▇▇▇ or any of its Restricted Subsidiaries) of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, to the date of purchase purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and C▇▇▇▇▇▇ or any of its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will, subject to Section 4.10(f) hereof, select the Notes to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of US$1,000, or integral multiples thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(d) The Asset Sale Offer will remain open for a period of at least 20 Business Days and not more than 30 Business Days (except to the extent that a longer period is required by applicable law) following its commencement (the “Offer Period”).
(e) Notwithstanding Within three Business Days after it becomes obligated to make the Asset Sale Offer, the Issuer will commence the Asset Sale Offer by sending a notice by first class mail to each Holder, at such Holder’s registered address, with a copy to the Trustee. The notice shall (i) contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer and (ii) be accompanied by such information regarding C▇▇▇▇▇▇ and its Restricted Subsidiaries as the Issuer in good faith believes will enable Holders to make an informed decision with respect to such Asset Sale Offer. Without limiting the foregoing, the salenotice, conveyance or other disposition of all or substantially all which will govern the terms of the assets Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this Section 4.10 and the length of time the Asset Sale Offer will remain open;
(2) the amount of Excess Proceeds, the Offer Amount (as defined below), the purchase price and the Purchase Date (as defined below);
(3) that any Note (or portion thereof) not tendered or accepted for payment will continue to accrue interest;
(4) that, unless the Issuer defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;
(5) that a Holder electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of US$1,000 only;
(6) that a Holder electing to have a Note purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Company Note completed, or transfer the Note by book-entry transfer, to the Issuer, a Depositary, if appointed by the Issuer, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(7) that a Holder will be entitled to withdraw his election if the Issuer, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and its Restricted Subsidiariesa statement that such Holder is withdrawing his election to have such Note purchased;
(8) that, taken if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders exceeds the Excess Proceeds, the Trustee will, subject to Section 4.10(f) hereof, select the Notes to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as a wholemay be deemed appropriate by the Trustee so that only Notes in denominations of US$1,000, or integral multiples thereof, will be governed purchased); and
(9) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09book-entry transfer).
(f) No Note in principal amount of US$1,000 or less can be purchased in part; except that if all of the Notes of a Holder are to be purchased pursuant to an Asset Sale Offer, the entire outstanding amount of Notes held by such Holder, even if not a multiple of US$1,000, shall be purchased.
(g) One Business Day prior to the end of the Offer Period (the last day of the Offer Period being herein called the “Purchase Date”), the Issuer will deposit with the Trustee or with the Paying Agent money sufficient to pay the purchase price of all Notes to be purchased on that Purchase Date, including accrued and unpaid interest (including Additional Interest, if any) on such Notes (the amount required to purchase such Notes and other pari passu Indebtedness being referred to herein as the “Offer Amount”). The Company Trustee or the Paying Agent will promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the purchase price of, and accrued and unpaid interest (including Additional Interest, if any) on, all Notes to be purchased.
(h) On a date that is no later than three Business Days after the Purchase Date, the Issuer will, to the extent lawful:
(1) accept for payment, on a pro rata basis to the extent necessary, all Notes (or any portions thereof) and other pari passu Indebtedness, in each case to the extent tendered pursuant to the Asset Sale Offer and required to be purchased by the Issuer pursuant to this Section 4.10; and
(2) 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 Issuer and that such Notes were accepted for payment by the Issuer in accordance with the terms of this Section 4.10.
(i) The Issuer, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than three Business Days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Issuer for purchase, and the Issuer will promptly issue a new Note, and the Trustee, upon written request from the Issuer will authenticate at the expense of the Issuer and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided, however, that each such Note shall be in a principal amount of US$1,000 or an integral multiple thereof. Any Note not so accepted shall be promptly mailed or delivered by or on behalf of the Issuer to the Holder thereof. The Issuer will publicly announce the results of the Asset Sale Offer on the Business Day following the Purchase Date.
(j) If an interest payment date is on or prior to the applicable Purchase Date, the accrued interest payable on such interest payment date shall be paid on such interest payment date to the Person in whose name the Note is registered at the close of business on the relevant interest payment record date.
(k) For purposes of this Section 4.10, the Issuer will be required to comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations4.10, the Company Issuer will be required to comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 such provisions by virtue of such complianceconflict.
Appears in 1 contract
Asset Sales. (a) The Company will Revel shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company Revel (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of (a) the assets or (b) the Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company Revel or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement (i) Permitted Business Assets or a combination thereof(ii) cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(Ai) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on including the Company’s consolidated balance sheet as of the date of such Asset Salefootnotes) of Revel and the Company or any Restricted Subsidiary Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases the Company and from which Revel or such Restricted Subsidiary from further liability thereforSubsidiary, as applicable, are released; and
(Bii) any securities, notes Notes or other obligations obligations, instruments, or assets received by the Company Revel or any such Restricted Subsidiary from such transferee that are converted within 180 days after receipt thereof by the Company Revel or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset SaleEquivalents, to the extent of the cash or Cash Equivalents received in that conversion.
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company Revel (or the applicable Restricted Subsidiary, as the case may be) may may, at its option, apply an amount equal to such Net Cash ProceedsProceeds to:
(1) repay, repurchase or redeem senior secured Indebtedness of Revel or any Restricted Subsidiary that is secured by Liens equal or senior in priority to repay Senior Debt in accordance the Liens securing the Notes and/or the Note Guarantees, as applicable, and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly permanently reduce the commitments with the Common Terms Agreement and this Indenture; orrespect to that Indebtedness;
(2) make a capital expenditure, improve real property or acquire long-term assets that are Permitted Business Assets; provided that to make any capital expenditure the extent the Net Proceeds being applied are from an Asset Sale of an asset that was Collateral securing the Notes or to purchase Replacement a Note Guarantee, the assets acquired with such Net Proceeds shall be pledged as Collateral securing the Notes or a Note Guarantee and shall not constitute Excluded Assets (notwithstanding that such assets may be of a type that would otherwise constitute Excluded Assets); provided further that if the assets that were the subject of such Asset Sale were Excluded Assets or did not otherwise constitute Collateral, the assets acquired shall not be required to be pledged as Collateral;
(3) enter into a binding agreement commitment to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated take, within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days 12 months after the date of such binding agreement commitment, any of the actions in the foregoing clauses (1) and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A2), the amount not so applied will be deemed to be Excess Proceeds.; or
(c4) any combination of the actions listed in the foregoing clauses (1) through (3). Revel (or such Restricted Subsidiary, as the case may be) shall comply with the terms of the Collateral Documents with respect to the continuation or granting of a security interest (subject to Permitted Liens and the terms of the Intercreditor Agreement) on any property or assets acquired or constructed with the Net Proceeds of any Asset Sale. Pending the final application of any Net Cash Proceeds, Revel (or such Restricted Subsidiary, as the Company case may be) may, at its option, (1) apply the Net Proceeds to temporarily reduce amounts outstanding under any senior secured revolving credit borrowings Indebtedness of Revel or otherwise any Restricted Subsidiary, (2) invest the Net Proceeds in Cash Equivalents, which will be subject to a security interest (subject to Permitted Liens and the terms of the Intercreditor Agreement) in favor of the Trustee, on behalf of the Holders of Notes, as security for the Notes or (3) otherwise invest or apply the Net Proceeds in any manner that is not prohibited by this Indenture. The Credit Agreement requires Revel and the Restricted Subsidiaries, in certain circumstances, to apply the Net Proceeds from an Asset Sale to repay any loans outstanding under the Credit Agreement, and any revolving credit agreement entered into in the future may be subject to a similar requirement. In such circumstances, until the debt under the Credit Agreement and any such future revolving credit agreement has been repaid in full, there will not be any Net Proceeds.
(dc) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will 4.10(b) shall constitute “Excess Proceeds.” If Within 30 days following the date on any date, which the aggregate amount of Excess Proceeds exceeds $100,000,00050.0 million, then within ten Business Days after such date, the Company Revel will make an offer (an “Asset Sale Offer”) to all Holders of Notes, to purchase the maximum principal amount (or accreted value, if applicable) of the Notes that may be purchased out of the amount of Excess Proceeds. To the extent that the aggregate principal amount (or accreted value, if applicable) of the Notes tendered into the Asset Sale Offer in accordance with Section 3.09. The offer price in any Asset Sale Offer will be equal to 100% of is less than the principal amount plus accrued and unpaid interest and Additional Interest(or accreted value, if any, to, but excluding, applicable) of Notes offered to be purchased in the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company Revel and its Restricted Subsidiaries may use those remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount (or accreted value, if applicable) of Notes tendered into the Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select such Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by Revel so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess of $2,000, will be purchased, other than any PIK Notes) or otherwise pursuant to Section 3.02, as applicable. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding . The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, to but not including the foregoingdate of purchase, and will be payable in cash. Upon completion of each Asset Sale Offer, the sale, conveyance or other disposition amount of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, Excess Proceeds will be governed by reset at zero. If the provisions payment date in connection with a Asset Sale Offer is on or after an interest record date and on or before the associated interest payment date, any accrued and unpaid interest, if any, due on such interest payment date will be paid to the Person in whose name a Note is registered at the close of Section 4.14 and/or the provisions of Section 5.01 business on such record date, and such interest will not by the provisions of this Section 4.09.
(f) The Company will be payable to holders who tender Notes pursuant to such Asset Sale Offer. Revel shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such these laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or 3.10 and this Section 4.094.10 of this Indenture, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company Revel will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 3.10 or this Section 4.09 4.10 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not ----------- permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2ii) at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereof. For purposes Equivalents; provided -------- that the amount of this provision, each of the following will be deemed to be cash:
(Ax) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Salesheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeSecurities or, in the case of liabilities of a Guarantor, the Security Guarantee of such Guarantor) that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases assets, or from which the Company or such and its Restricted Subsidiary from further liability therefor; and
Subsidiaries are released in writing by the creditor with respect thereto, and (By) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash received) within 180 days after receipt shall be deemed, in each case, to be cash for purposes of this provision; provided, further, however, that this clause (ii) shall not -------- ------- ------- apply to any sale of Equity Interests of or Cash Equivalents received other Investments in that conversion.
(b) Unrestricted Subsidiaries. Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
, at its option, (1a) to repay Senior Debt, Debt of any Restricted Subsidiary or Pari Passu Debt (other than Debt owed to the Company or a Subsidiary of the Company, and provided that if the Company -------- shall so reduce Pari Passu Debt, it will equally and ratably make an Asset Sale Offer (in accordance with the Common Terms Agreement and this Indenture; or
(2procedures set forth in Section 3.09 for an Asset Sale Offer) to make all Holders), (b) to invest in properties and assets that will be used or useful in the business of the Company or any of its Subsidiaries or (c) to the acquisition of a controlling interest in another business, the making of a capital expenditure or to purchase Replacement Assets (the acquisition of other assets, in each case, that will be used or enter into a binding agreement to make such capital expenditure useful in the business of the Company or to purchase such Replacement Assetsany of its Restricted Subsidiaries; provided that if during such 360-day period the Company or a -------- Restricted Subsidiary enters into a definitive agreement committing it to apply such Net Proceeds in accordance with the requirements of clause (Ab) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending such 360-day period will be extended for a period not to exceed 180 days with respect to the final application amount of any Net Cash ProceedsProceeds so committed until required to be paid in accordance with such agreement (or, the Company may reduce revolving credit borrowings or otherwise invest the if earlier, until termination of such agreement). Any Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses first sentence of this Section 4.09 paragraph will be deemed to constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10 million, the Company will shall (i) make an Asset Sale Offer offer to all Holders of Securities, and (ii) prepay, purchase or redeem (or make an offer to do so) any other Pari Passu Debt of the Company in accordance with Section 3.09. The provisions requiring the Company to prepay, purchase or redeem such Debt with the proceeds from any Asset Sales (or offer to do so), pro rata in proportion to the respective principal amounts (or accreted value, as applicable) of the Securities and such other Debt required to be prepaid, purchased or redeemed or tendered for, in the case of the Securities pursuant to such offer (an "Asset Sale Offer"), to purchase the maximum principal amount of Securities that may be purchased out of such pro rata portion of the Excess Proceeds, at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the their principal amount plus 57 accrued and unpaid interest and Additional InterestLiquidated Damages (or, if prior to the Full Accretion Date, 100% of the Accreted Value thereof on the date of purchase, plus Liquidated Damages (if any, to, but excluding, ) to the date of purchase subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date, in accordance with the procedures set forth in Section 3.09). To the extent that the aggregate principal amount (or, if prior to the Full Accretion Date, the aggregate Accreted Value) of Securities and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of Pari Passu Debt tendered pursuant to an Asset Sale OfferOffer or other offer is less than the Excess Proceeds, the Company and its Restricted Subsidiaries may use those any remaining Excess Proceeds for any purpose not otherwise prohibited general corporate purposes. If the aggregate principal amount (or Accreted Value, as the case may be) of Securities surrendered by this IndentureHolders thereof exceeds the pro rata portion of such Excess Proceeds to be used to purchase Securities, the Trustee shall select the Securities to be purchased on a pro rata basis. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) in the event of an Asset Sale involving assets having a fair market value in excess of $5.0 million, such fair market value is determined by the Company’s chief financial officer and (B) evidenced by an amount equal Officers’ Certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciationTrustee; and
(2iii) at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will shall be deemed to be cash:
(A) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Salesheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; andliability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion) within 90 days following the receipt thereof;
(C) any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received since the date of this Indenture pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (i) $20.0 million and (ii) 2.0% of Total 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 value); and
(D) any assets described in Section 4.10(b)(iii) or (iv).
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash ProceedsProceeds at its option:
(1i) to repay Senior Debt in accordance with or Guarantor Senior Debt (and to correspondingly reduce commitments if the Common Terms Agreement and this Indenture; orSenior Debt or Guarantor Senior Debt repaid is revolving credit borrowings);
(2ii) to acquire all or substantially all of the assets of, or all or a majority of the Voting Stock of, another Permitted Business;
(iii) to make any a capital expenditure in assets that are used or useable in a Permitted Business;
(iv) to purchase Replacement Assets acquire other assets that are used or useable in a Permitted Business; and/or
(or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (Av) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt any combination of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) foregoing. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(dc) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 4.10(b) will constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date15.0 million, the Company will make an Asset Sale Offer to all Holders of Notes, and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, to the date of purchase purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(fd) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act (unless Rule 14d-1(b) under the Exchange Act shall apply) and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase purchase of Notes pursuant to an Asset Sale Offer. To the extent that If the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.09 Indenture by virtue of such complianceconflict.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) the fair market value, in the case of any Asset Sales or series of related Asset Sales having a fair market value of $5.0 million or more, is determined by the Company's Board of Directors and (B) evidenced by a resolution of Board of Directors set forth in an amount equal Officers' Certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciationTrustee; and
(2iii) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provisionSection 4.10(a)(iii) only, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities Indebtedness (other than Indebtedness secured by the assets sold) that are by their terms is equal in right of payment with or subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforliability; and
(B) any securities, notes Notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 30 days after such the applicable Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion.
(b) Within 360 days after the receipt of any Net Cash Proceeds from an Asset SaleSale or from the sale of the Company's interest in Premier Custodial Group Limited to Serco Investments Limited, the Company (or the applicable Restricted Subsidiary, as the case may be) Subsidiary may apply an amount equal to such those Net Cash Proceeds, at its option:
(1i) to repay Senior Debt permanently Indebtedness under the Credit Agreement (and with respect to Net Proceeds of a Restricted Subsidiary that is not a Guarantor, Indebtedness of such Restricted Subsidiary) and, if the Indebtedness permanently repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(ii) to acquire, or enter into a definitive agreement to acquire, all or substantially all of the assets of, a Permitted Business or a majority of the Voting Stock of a Person employed in accordance with a Permitted Business, PROVIDED that such Person becomes a Restricted Subsidiary and PROVIDED FURTHER, however, in the Common Terms Agreement case of a definitive agreement, that such acquisition closes within 120 days of such 360 day period;
(iii) to make a capital expenditure in or that is used or useful in a Permitted Business (provided that the completion of (a) construction of new facilities, (b) expansions to existing facilities and this Indenture(c) repair or construction of damaged or destroyed facilities, in each case, which commences within such 360 days may extend for an additional 360 day period if the Net Proceeds to be used for such construction, expansion or repair are committed specifically for such activity within such 360 days); or
(2iv) to make any capital expenditure acquire other long-term assets that are used or to purchase Replacement Assets (or enter into useful in a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Permitted Business. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(dc) An amount equal to any Any Net Cash Proceeds from Asset Sales (or from the sale of the Company's interest in Premier Custodial Group Limited to Serco Investments Limited) that are not applied or invested as provided in the preceding clauses of this Section 4.09 paragraph will constitute “Excess Proceeds"EXCESS PROCEEDS.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10.0 million, the Company will shall make an Asset Sale Offer offer (an "ASSET SALE OFFER") to all Holders of Notes and, at the Company's option, all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase on a pro rata basis the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount amount, plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to, but excluding, to the date of purchase purchase, and will shall be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(fd) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 4.10 by virtue of such complianceconflict.
Appears in 1 contract
Asset Sales. (a) The Company Investor will not, and will not permit any of its the Investor’s Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) : the Company Investor (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of of; and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company Investor or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will be deemed to be cash:
(A) : any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as sheet, of the date of such Asset Sale) of the Company Investor or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Notes, any Guarantee or any Note Guaranteethe Proceeds Loan) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company Investor or such Restricted Subsidiary from further liability thereforin respect of those liabilities; and
(B) and any securities, notes or other obligations received by the Company Investor or any such Restricted Subsidiary from such transferee that are converted by the Company Investor or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale60 days, to the extent of the cash or Cash Equivalents received in that conversion.
(b) . Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset SaleSale to be applied as set out in this paragraph, the Company Investor (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal those Net Proceeds, at its option: to acquire all or substantially all of the assets of, or any Share Capital of, a Permitted Business if, after giving effect to any such Net Cash Proceeds:
(1) to repay Senior Debt in accordance with acquisition of Share Capital, the Common Terms Agreement and this IndenturePermitted Business is or becomes a Restricted Subsidiary of the Investor; or
(2) to make any a capital expenditure expenditure; or to purchase Replacement Assets (acquire other assets that are not classified as current assets under GAAP and that are used or enter into useful in a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Permitted Business. Pending the final application of any Net Cash Proceeds, the Company Investor may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Schedule. Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 paragraph will constitute “Excess Proceeds.” If on any date”. On the 366th day after an Asset Sale, if the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10.0 million, the Company Investor will make an Asset Sale Offer to the Lender, Note holders and all holders of other Indebtedness that is pari passu with the Notes or the Finance Documents containing provisions similar to those set forth in accordance this Schedule with Section 3.09respect to offers to prepay, purchase or redeem such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional InterestAmounts, if any, to, but excluding, to the date of purchase purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company Investor and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Agreement and the Indenture. If the aggregate principal amount of Notes, amount of Indebtedness under the Finance Documents and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis provided that Notes of €50,000 or less may only be purchased in whole and not in part. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding . Upon the foregoingcommencement of an Asset Sale Offer, the saleInvestor shall send, conveyance by first class mail or other disposition of all or substantially all its equivalent, a notice to the Trustee, the Lender and each of the assets Holders. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to the Lender and to all Holders. The notice, which shall govern the terms of the Company Asset Sale Offer in respect of the Notes, shall state: that the Asset Sale Offer is being made pursuant to this Clause 2.10 (Asset Sales) and its Restricted Subsidiariesthe length of time the Asset Sale Offer shall remain open; the Offer Amount, taken as the purchase price and the Purchase Date; that any Note not tendered or accepted for payment shall continue to accrue interest; that, unless the Investor defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase Date; that Holders electing to have a wholeNote purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of €1,000 only; that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, will be governed with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Investor, a depositary, if appointed by the provisions Investor, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date; that Holders shall be entitled to withdraw their election if the Investor, the depositary or the Paying Agent, as the case may be, receives, not later than the expiration of Section 4.14 and/or the provisions Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of Section 5.01 the Holder, the principal amount of the Note the Holder delivered for purchase and not a statement that such Holder is withdrawing his election to have such Note purchased; that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Offer Amount, the Investor shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the provisions Investor so that only Notes in denominations of €1,000 or integral multiples thereof, shall be purchased); and that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). On or before the Purchase Date, the Investor shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the amount of Indebtedness under the Finance Documents tendered by the Lender, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Investor in accordance with the terms of this Section 4.09.
4.12 (fAsset Sales). The Investor, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder or Lender (as the case may be) an amount equal to the purchase price of the Notes tendered by such Holder or the amount of Indebtedness under the Financial Documents tendered by the Lender (as the case may be) and (in respect of the Notes) accepted by the Investor for purchase, and the Investor shall promptly issue a new Note, and the Trustee, upon written request from the Investor shall procure that the Authenticating Agent authenticate and the Trustee shall mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Investor to the Holder thereof. The Company Investor shall publicly announce the results of the Asset Sale Offer on the Purchase Date. The Investor will comply with the requirements of Rule 14e-1 under the U.S. Exchange Act and any other securities laws and regulations thereunder and stock exchange rules, to the extent such laws those laws, regulations and regulations rules are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations or securities or investment exchange rules conflict with the Asset Sale provisions of Section 3.09 the Indenture or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsAgreement, the Company Investor will comply with the applicable securities laws laws, regulations and regulations rules and will not be deemed to have breached its obligations under Section 3.09 the Asset Sale provisions of the Indenture or this Section 4.09 Agreement by virtue of such complianceconflict.
Appears in 1 contract
Sources: Distribution Agreement (Central European Distribution Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
(1) the Company (Company, or the Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in such Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Equivalents, Replacement Assets or a combination thereof. For purposes of this provisionclause (3), each of the following will shall be deemed to be cash:
(Aa) any Indebtedness or other liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities Indebtedness that are by their terms subordinated to the Notes or any Note Guarantee) Notes), that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforwith respect to such Indebtedness or liabilities; and
(Bb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 90 days of the applicable Asset Sale by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that such conversion.
(b) [Reserved].
(c) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable any of its Restricted Subsidiary, as the case may be) Subsidiaries may apply an amount equal to such those Net Cash ProceedsProceeds at its option:
(1) (a) to permanently repay Senior Debt in accordance or reduce Indebtedness, other than Subordinated Indebtedness, of the Company and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; or (b) to permanently repay or reduce Indebtedness of any of the Common Terms Agreement and this Indenture; orCompany’s Restricted Subsidiaries;
(2) to make any capital expenditure or to purchase Replacement Assets (acquire, or enter into a binding agreement to make such capital expenditure acquire, all or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt substantially all of the Net assets (other than cash, Cash Proceeds from the related Asset Sale Equivalents and securities) of any Person engaged in a Permitted Business; provided, however, that any such commitment shall be subject only to customary conditions (ii) other than financing), and such acquisition shall be consummated no later than 180 days after the date end of such 360-day period;
(3) to acquire, or enter into a binding agreement to acquire, Voting Stock of a Person engaged in a Permitted Business from a Person that is not a Subsidiary of the Company; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 360-day period; and provided, further, however, that (a) if the Net Proceeds are from the sale of assets of the Company or any of its Restricted Subsidiaries or the Equity Interests of any of its Restricted Subsidiaries, after giving effect thereto, the Person so acquired becomes a Restricted Subsidiary and (Bb) if such capital expenditure acquisition is otherwise made in accordance with this Indenture, including, without limitation, Section 4.10 hereof;
(4) to acquire, or purchase enter into a binding agreement to acquire, previously issued and outstanding Voting Stock of a non-Wholly Owned Restricted Subsidiary of the Company (a) from a Person that is not an Affiliate of the Company or (b) in a brokered transaction through the facilities of a stock exchange; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated within no later than 180 days after the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.end of such 360-day period;
(c5) to make capital expenditures; or
(6) to acquire, or enter into a binding agreement to acquire, other long-term assets (other than securities) that are used or useful in a Permitted Business; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 360-day period. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will paragraph (c) above shall constitute “Excess Proceeds.” If on any date, ”
(e) When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such dateCnd$100.0 million, the Company will shall make an offer (an “Asset Sale Offer Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu in right of payment with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.093.09 hereof. The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness, plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, to the date of purchase purchase, and will shall be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale OfferOffer and all Holders of Notes have been given the opportunity to tender their Notes for purchase in accordance with such Asset Sale Offer and this Indenture, the Company and its Restricted Subsidiaries may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes and such other pari passu Indebtedness shall be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) . The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will shall comply with the applicable securities laws and regulations and will not shall be deemed not to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.09 Indenture by virtue of such complianceconflict.
Appears in 1 contract
Sources: Indenture (Quebecor Media Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unlesssell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it, nor will the Company permit any of it Subsidiaries to issue any additional Equity Interest in such Subsidiary, except:
(1a) sales of inventory, used, surplus or obsolete equipment and Permitted Investments in the ordinary course of business;
(b) sales, transfers, leases and dispositions to the Company or a Subsidiary; provided that any such sales, transfers, leases or dispositions involving a Subsidiary that is not a Subsidiary Guarantor shall be made in compliance with Section 6.08;
(c) sales or transfers of Receivables and interests therein, together with Related Security, pursuant to a Permitted Receivables Financing;
(d) dispositions of delinquent accounts receivable in connection with the collection or compromise thereof in the ordinary course of business;
(e) sales or exchanges of any item of real property and/or equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 360 days before or after such sale or exchange in the acquisition of) replacement items of real property and/or equipment which are at least the functional equivalent of the item of real property and/or equipment so sold or exchanged;
(f) the Company (license in the ordinary course of business of patents, trademarks, servicemarks, trade names, technology, know-how and formulas or the Restricted Subsidiaryother rights to third Persons and to one another, so long as the case may be) receives consideration at the time of the Asset Sale equal each such license is permitted to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 90% of the consideration therefor received be assigned by the Company or any of its Subsidiaries pursuant to the Collateral Agreement (to the extent that a security interest in such Restricted Subsidiary patents, trademarks, servicemarks, trade names, technology, know-how and formulas or other rights is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Company or any of its Subsidiaries pursuant to the Collateral Agreement in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:intellectual property covered by such license;
(Ag) leases or subleases granted by the Company or any liabilities, as shown on Subsidiary to third Persons not interfering in any material respect with the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) business of the Company or any Restricted Subsidiary of its Subsidiaries;
(h) sales of other than contingent liabilities assets; provided that either (A) the fair market value of all assets sold pursuant to any single transaction (or series of related transactions) in reliance upon this clause shall not exceed $2,500,000 or (B) in the case of transactions that do not satisfy (A) above, the aggregate fair market value of all assets sold in reliance upon this clause shall not exceed $25,000,000 during any fiscal year;
(i) sales, transfers and liabilities other dispositions of assets that are not permitted by their terms subordinated any other clause of this Section; provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this clause during any fiscal year (excluding warehouses, customer service facilities and other administrative facilities, to the Notes extent that the Net Proceeds from the sale, transfer or any Note Guarantee) that disposition thereof are assumed by the transferee of any such assets applied to prepay Term Loans pursuant to Section 2.11(c), in which case, and to such extent, such sales, transfers and dispositions shall not be subject to this limitation) shall not exceed $100,000,000;
(j) the issuance or sale by a written novation agreement that releases Subsidiary of Equity Interests to the Company or such Restricted another Subsidiary from further liability thereforin compliance with Section 6.04;
(k) the granting of any Lien permitted by Section 6.02; and
(Bl) any securitiessales, notes transfers and dispositions of assets of, or other obligations received by Equity Interests in, Subsidiaries; provided that the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, to the extent fair market value of the cash or Cash Equivalents received all assets and Equity Interests sold in that conversion.
(b) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1) to repay Senior Debt in accordance with the Common Terms Agreement and reliance upon this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assetsclause shall not exceed $200,000,000; provided that (A) such capital expenditure all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by clause (b) or purchase is consummated within the later of (j) above) shall be made for fair value, (B) all sales, transfers and dispositions permitted by clause (h), (i) 360 days after or (l) above (other than sales, transfers and dispositions of assets to Persons in which an investment, loan or advance has been made in reliance on clause (l) of Section 6.04, the receipt fair market value of which do not exceed $25,000,000 in the aggregate) shall be made for at least 80% Cash Consideration (it being understood that consideration in the form of the Net assumption by the purchaser of Indebtedness secured by assets sold, or, in the case of the sale of a Subsidiary, Indebtedness of such Subsidiary, shall be ignored for purposes of determining compliance with such 80% Cash Proceeds Consideration requirement) and (C) if the Company or any Subsidiary sells, transfers or otherwise disposes of Equity Interests in a Subsidiary (other than (1) any Excluded Subsidiary, except any Excluded Subsidiary resulting from the related Asset Sale Perbio Acquisition, (2) any Subsidiary the investments in which (including Guarantees) already constitute investments made in reliance on clause (l) of Section 6.04 prior to such sale, transfer or disposition, (3) any Subsidiary Guarantor that remains a Subsidiary Guarantor under the Collateral Agreement after giving effect to such sale, transfer or disposition, so long as it remains a Subsidiary Guarantor, and (ii4) 180 days after any Subsidiary that was not a Subsidiary Guarantor prior to giving effect to such sale, transfer or disposition, if and so long as there is no agreement or other arrangement that prohibits, restricts or imposes any condition upon the date ability of such binding agreement and (BSubsidiary, or former Subsidiary, to pay dividends or other distributions with respect to any shares of its capital stock thereafter that did not previously exist prior to such sale, transfer or disposition, other than those imposed by law) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending the final application of any Net Cash Proceeds, a Person other than the Company may reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds another Subsidiary and such sale, transfer or disposition does not include all Equity Interests in any manner that is not prohibited such Subsidiary owned by this Indenture.
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will constitute “Excess Proceeds.” If on any date, the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date, the Company will make an Asset Sale Offer in accordance with Section 3.09. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted other Subsidiaries may use those Excess Proceeds or the Company or any other Subsidiary remain liable for any purpose not otherwise prohibited by this Indenture. Upon completion Guarantee of each Asset Sale OfferIndebtedness or other obligations of such Subsidiary, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoingthen, the upon such sale, conveyance transfer or other disposition (or, if not required to do so by reason of all an exception described in clause (3) or substantially all (4) above, then upon any failure to continue to satisfy the requirements of the assets such exception), each of the Company and its Restricted SubsidiariesSubsidiaries that holds any remaining investments (whether in the form of Equity Interests, taken as a whole, will be governed by the provisions loans or advances) in such Subsidiary (or former Subsidiary) or continues to Guarantee any Indebtedness or other obligations of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
such Subsidiary (for former Subsidiary) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not shall be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue made such investments on the date of such compliancesale, transfer or disposition (or the date of the failure to continue to satisfy the relevant exception, if applicable) (in an amount equal to the fair market value of such investments on such date or the amount so Guaranteed on such date, as applicable) in reliance upon clause (l) of Section 6.04 (it being understood that such sale, transfer or disposition shall not be permitted if such investments and Guarantees would not be permitted under clause (l) of Section 6.04).
Appears in 1 contract
Sources: Credit Agreement (Fisher Scientific International Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (Company, or the any such Restricted Subsidiary, as the case may be) , receives consideration at the time of the such Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Company's Board of Directors and (B) evidenced by a resolution of its Board of Directors set forth in an amount equal Officers' Certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciationAdministrative Agent; and
(23) at least 9075% of the consideration therefor received in such Asset Sale by the Company or any such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofPermitted Business Asset. For purposes of this provision, each of the following will shall be deemed to be cash:
(A) any of the Company's or its Restricted Subsidiaries' Indebtedness or other liabilities, as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) of the Company or any Restricted Subsidiary (sheet, other than contingent liabilities and liabilities Indebtedness that are is by their its terms subordinated to the Notes or any Note Guarantee) Term Loans, that are assumed by the transferee of any such assets pursuant to a written novation an agreement that releases the Company or such Restricted Subsidiary from further liability thereforliability; and
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 90 days of the applicable Asset Sale by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion.
; provided that clauses (b1) and (2) shall not apply to Asset Sales made pursuant to contractual obligations existing at the date of this Agreement. Within 360 days 12 months after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or Company, the applicable Restricted SubsidiarySubsidiary or, as subject to the case may be) immediately following paragraph, or any other Restricted Subsidiary may apply an amount equal to such Net Cash Proceeds or, in the case of clause (3) below, enter into a binding commitment to apply such amount if such amount is applied within 24 months after receipt of such Net Cash Proceeds, as follows:
(1) to permanently repay Senior Debt any Indebtedness that ranks equal in accordance right of payment to the Term Loans and Notes or repay any Indebtedness of any Restricted Subsidiary (other than intercompany Indebtedness) and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with the Common Terms Agreement and this Indenture; orrespect thereto;
(2) to make capital expenditures;
(3) to acquire Equity Interests in one of its Restricted Subsidiaries not then owned by the Company or one of its other Restricted Subsidiaries, to acquire Equity Interests in any capital expenditure Person such that such person becomes a Restricted Subsidiary of the Company as a result of such acquisition or to purchase Replacement Assets acquire additional Equity Interests in any Investment in any Person with respect to which the Company or any Restricted Subsidiary then owns any Equity Interests regardless of whether such Person becomes a Restricted Subsidiary as a result of such acquisition; or
(4) to acquire a Facility or enter into a binding agreement to make such capital expenditure Permitted Business, or to purchase such Replacement Assets; assets used in a Permitted Business, provided that (A) such capital expenditure or purchase acquisition is consummated within made in accordance with the later Indenture, including, without limitation, Section 5.9. In determining compliance with the immediately preceding paragraph, if the Company's percentage of (i) 360 days after the receipt of Equity Interests in the Restricted Subsidiary that so applies the Net Cash Proceeds is less than its percentage of the Equity Interests in the Restricted Subsidiary that engaged in the Asset Sale, then the amount of Net Cash Proceeds necessary to comply with this Section 5.17 will be increased so that the amount of Net Cash Proceeds attributable to the Company's ownership interest in the entity applying the Net Cash Proceeds (taking into account all contributions by the other holders of any Equity Interests in such entity and any change in percentage ownership interest resulting from such contribution) equals the related amount of Net Cash Proceeds attributable to the Company's ownership interest in the entity making the Asset Sale. Any proceeds from an Asset Sale that are not applied or invested as provided above in the preceding paragraph will constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $20.0 million, the Company will make an asset sale offer ("Asset Sale Offer") to all holders of Notes and the Lenders (iion a pro rata basis based on the aggregate principal amount of Notes and Term Loans outstanding) 180 days after (and to all holders of other pari passu Indebtedness of the Company and that contain provisions similar to those set forth in this Section 5.17 with respect to offers to purchase or redeem with the proceeds of sales of assets) to prepay the maximum principal amount of Term Loans and any such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The prepayment price shall be equal to 100% of principal amount of the Notes or Term Loans subject to the Asset Sale Offer plus accrued and unpaid interest (including liquidated damages, if any, with respect to the Notes as provided by the Indenture) thereon to the date of prepayment (or, in respect of other pari passu Indebtedness such binding agreement lesser price, if any, as may be provided for by the terms of such pari passu Indebtedness), and (B) if will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use such capital expenditure Excess Proceeds for any purpose not otherwise prohibited by this Agreement or purchase is not consummated within the period set forth in subclause (A)Indenture. If the aggregate principal amount of Notes, Term Loans and pari passu Indebtedness, together with accrued and unpaid interest, thereon tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the amount of such Notes, Term Loans and pari passu Indebtedness to be redeemed or prepaid shall be reduced (on a pro rata basis based on such aggregate principal amount) in an amount equal to such excess shall not so applied be purchased or redeemed and shall remain outstanding. Upon completion of each offer to prepay, the amount of Excess Proceeds will be deemed to be Excess Proceeds.
(c) reset at zero. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Agreement or the Indenture.
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will constitute “Excess Proceeds.” If on any date, the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date, the Company will make an Asset Sale Offer in accordance with Section 3.09. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1a) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(b) in the case of Asset Sales involving consideration in excess of $10.0 million, the fair market value is determined by the Company's Board of Directors and (B) evidenced by a resolution of the Board of Directors set forth in an amount equal Officers' Certificate delivered to the invested cost Trustee promptly after the consummation of the assets sold or otherwise disposed of, less depreciationsuch Asset Sale; and
(2c) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will shall be deemed to be cash:
(A1) any liabilities, as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary and from further liability thereforliability; and
(B2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion.
(b) . Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such those Net Cash ProceedsProceeds at its option:
(1a) to repay Senior Debt in accordance secured Indebtedness under a Credit Facility and, if such secured Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(b) to acquire all or substantially all of the Common Terms Agreement and this Indentureassets of, or a majority of the Voting Stock of, another Permitted Business;
(c) to make a capital expenditure; or
(2d) to make any capital expenditure acquire other long-term assets that are used or to purchase Replacement Assets (or enter into useful in a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Permitted Business. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will paragraph shall constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date5.0 million, the Company will shall make an Asset Sale Offer in accordance with Section 3.09. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase Holders of Notes pursuant to an Asset Sale Offer. To the extent that the provisions and all holders of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.other
Appears in 1 contract
Sources: Indenture (Plastipak Holdings Inc)
Asset Sales. (a) The Company will not, and will not permit any of its the Restricted Subsidiaries to, consummate an Asset Sale unless:
(1a) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost as determined in good faith by Company's Board of the assets sold or otherwise disposed of, less depreciationDirectors); and
(2b) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will be deemed to be cash:
(Ai) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases request and from which the Company or such Restricted Subsidiary is released from further liability thereforwith respect to such liabilities; and
(Bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 30 days after such Asset Saleof receipt, to the extent of the cash or Cash Equivalents received in that conversion.
(b) . Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such those Net Cash ProceedsProceeds at its option:
(1a) to repay Senior Debt in accordance and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(b) to acquire all or substantially all of the Common Terms Agreement and this Indentureassets of, or a majority of the Voting Stock of, another Permitted Business;
(c) to make a capital expenditure; or
(2d) to make any capital expenditure acquire other long-term assets that are used or to purchase Replacement Assets (or enter into useful in a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Permitted Business. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 paragraph will constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10.0 million, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to, but excluding, to the date of purchase purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) . The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.09 Indenture by virtue of such complianceconflict.
Appears in 1 contract
Sources: Indenture (Rotech Healthcare Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale (including a Collateral Disposition) unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and;
(2) the Fair Market Value is determined by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate delivered to the Trustee;
(3) at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary from all Asset Sales since the Issue Date, in the aggregate, is in the form of cash; and
(4) in the case of a Collateral Disposition, Cash Equivalents the Collateral Agent is granted a perfected Lien (subject only to Permitted Liens) in all assets or Replacement Assets property received by the Company or any Restricted Subsidiary as consideration therefor (or, with respect to cash, the portion of such cash that constitutes Net Proceeds) as additional Collateral under the Security Documents to secure the Second Lien Claims, and, in the case of cash constituting Net Proceeds, such cash must be deposited into a combination thereofsegregated account under the control of the First Lien Agent and the Collateral Agent that includes only proceeds from the Collateral Disposition and interest earned thereon (a “Collateral Disposition Proceeds Account”), which proceeds shall be subject to release from the Collateral Disposition Proceeds Account for the uses described below in this covenant as provided for in the Security Documents. For Except with respect to a Collateral Disposition, for purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforliability; and
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 90 days by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion.
(b) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable any such Restricted Subsidiary, as the case may be) Subsidiary may apply an amount equal those Net Proceeds at its option to such Net Cash Proceedsany combination of the following:
(1) to repay Senior Debt in accordance with repay, redeem or repurchase Indebtedness constituting First Lien Claims, the Common Terms Agreement Notes and other pari passu Indebtedness secured by a Lien permitted by this Indenture; orprovided that if such Indebtedness is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto as specified in Section 4.09 hereof;
(2) to make acquire all or substantially all of the properties or assets of one or more other Persons primarily engaged in the Oil and Gas Business, and, for this purpose, a division or line of business of a Person shall be treated as a separate Person so long as such properties and assets are acquired by the Company or a Restricted Subsidiary;
(3) to acquire a majority of the Voting Stock of one or more other Persons primarily engaged in the Oil and Gas Business, if after giving effect to any capital expenditure such acquisition of Voting Stock, such Person is or to purchase Replacement Assets becomes a Restricted Subsidiary;
(or enter into a binding agreement 4) to make such one or more capital expenditure expenditures; or
(5) to acquire other long-term assets that are used or to purchase such Replacement Assetsuseful in the Oil and Gas Business; provided provided, that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of if the Net Cash Proceeds are from a Collateral Disposition, the related Asset Sale property, assets, Voting Stock or capital expenditures referred to in clauses (2), (3), (4) and (ii5) 180 days after shall be of a type substantially similar to such items constituting Collateral, and the date of such binding agreement and Collateral Agent is granted a perfected Lien (Bsubject only to Permitted Liens) if such capital expenditure or purchase is not consummated within therein in accordance with the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Security Documents. Pending the final application of any Net Cash ProceedsProceeds (other than Net Proceeds held in the Collateral Disposition Proceeds Account), the Company or any such Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(dc) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 4.10(b) hereof will constitute “Excess Proceeds.” If on On the 361st day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds (including Net Proceeds held in a Collateral Disposition Proceeds Account) then exceeds $100,000,000, then within ten Business Days after such date15.0 million, the Company will make an Asset Sale Offer to all Holders of Notes pursuant to Section 3.09 hereof, and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those in accordance this Indenture with Section 3.09. respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds.
(d) The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interestinterest, if any, to, but excluding, to the date of purchase settlement, subject to the right of Holders on the relevant Record Date to receive interest due on an Interest Payment Date that is on or prior to the date of settlement, and will be payable in cash. .
(e) If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture.
(f) If the aggregate principal amount of Notes and other Indebtedness ranking pari passu with the Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater fair market value (as determined in good faith by the Board of (ADirectors of the Company and set forth in an Officers' Certificate delivered to the Trustee) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2ii) at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereof. For purposes Equivalents; provided that the amount of this provision, each of the following will be deemed to be cash:
(Ax) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guaranteeor, in the case of liabilities of a Restricted Subsidiary, the Subsidiary Guarantee of such Subsidiary) that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
and (By) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion.
(breceived) within 180 days after receipt, shall be deemed to be cash for purposes of this provision. Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
, at its option, (1a) to repay Senior Debt or Pari Passu Indebtedness (provided that if the Company shall so reduce Pari Passu Indebtedness, it will equally and ratably make an Asset Sale Offer (in accordance with the Common Terms Agreement and this Indenture; or
(2procedures set forth below for an Asset Sale Offer) to make any all Holders) and/or (b) to an investment in another business, the making of a capital expenditure or to purchase Replacement Assets (the acquisition of other tangible assets, product distribution rights or enter into intellectual property or rights thereto, in each case, in a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later line of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) business permitted by Section 4.17. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings under the Credit Facility or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this the Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses first sentence of this Section 4.09 paragraph will be deemed to constitute “"Excess Proceeds.” " If on any date, and when the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date5.0 million, the Company will shall (i) make an offer to all Holders of Notes and (ii) prepay, purchase or redeem (or make an offer to do so) any other Pari Passu Indebtedness of the Company in 55 accordance with provisions requiring the Company to prepay, purchase or redeem such Indebtedness with the proceeds from any asset sales (or offer to do so), the maximum principal amount of Notes and of such indebtedness that may be purchased out of such Excess Proceeds, pro rata in proportion to the respective principal amounts (or accreted value, as applicable) of the Notes and such other Indebtedness required to be prepaid, purchased or redeemed or tendered for pursuant to such offer (an "Asset Sale Offer in accordance with Section 3.09. The Offer"), at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages thereon, if any, to, but excluding, any to the date of purchase and will be payable purchase, in cashaccordance with the procedures set forth in Section 3.09. If any Excess Proceeds remain unapplied after consummation of an An Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will Offer shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by made pursuant to the provisions of Section 4.14 and/or the provisions of Section 5.01 and not 3.09. hereof. The Asset Sale Offer shall be made by the provisions of this Section 4.09.
(f) The Company will comply in compliance with the requirements of all applicable laws, including, without limitation, Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder the rules thereunder, to the extent such laws applicable, and regulations are all other applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any federal and state securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliancelaws.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its the Restricted Subsidiaries to, consummate an Asset Sale unless:
(1a) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(b) the fair market value is determined by the Company’s Board of Directors and (B) an amount equal to the invested cost evidenced by a resolution of the assets sold or otherwise disposed of, less depreciationBoard of Directors; and
(2c) at least 9070% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or and/or Replacement Assets or a combination thereofAssets. For purposes of this provision, each of the following will be deemed to be cash:
(Ai) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases and from which the Company or such Restricted Subsidiary is released from further liability thereforliability; and
(Bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 60 days after such Asset Saleof receipt, to the extent of the cash or Cash Equivalents received in that conversion.
(b) . Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company or a Restricted Subsidiary may apply those Net Proceeds at its option:
(a) to repay Senior Debt;
(b) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(c) to make a capital expenditure;
(d) to acquire Replacement Assets; or
(e) to acquire other long-term assets that are used or useful in a Permitted Business. The Company or the applicable relevant Restricted SubsidiarySubsidiary will be deemed to have complied with the immediately preceding sentence with respect to any such Net Proceeds if it enters into a binding agreement to make an acquisition or capital expenditure permitted pursuant to clause (b), (c), (d) or (e) of the immediately preceding sentence in an amount equal to such Net Proceeds within such 360 days; provided that, if the relevant acquisition or capital expenditure is not consummated or completed, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1) to repay Senior Debt in accordance with the Common Terms Agreement and this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated , within the later of (ix) 360 days after the receipt of the relevant Net Cash Proceeds from the related Asset Sale and (iiy) 180 90 days after the date of such binding agreement and (B) if agreement, such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied Net Proceeds will be deemed to be constitute “Excess Proceeds.
(c) ” Pending the final application of any Net Cash Proceeds, the Company or the Restricted Subsidiary may reduce revolving credit borrowings or otherwise temporarily invest the Net Cash Proceeds in any manner that is not prohibited by this the Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 paragraph will constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date50.0 million, the Company will shall make an offer ( an “Asset Sale Offer in accordance Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with Section 3.09the Notes containing provisions similar to those set forth herein with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interestinterest, if any, to, but excluding, to the date of purchase purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this the Indenture. If the aggregate principal amount of notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) . The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions Section 3.03 of Section 3.09 this Fifth Supplemental Indenture or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations4.04, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 3.03 of this Fifth Supplemental Indenture or this Section 4.09 4.04, by virtue of such complianceconflict.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
(1) the Company (Company, or the Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in such Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Equivalents, Replacement Assets or a combination thereof. For purposes of this provisionclause (3), each of the following will shall be deemed to be cash:
(Aa) any Indebtedness or other liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities Indebtedness that are by their terms subordinated to the Notes or any Note Guarantee) Notes), that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforwith respect to such Indebtedness or liabilities; and
(Bb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 90 days of the applicable Asset Sale by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that such conversion.
(b) [Reserved].
(c) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable any of its Restricted Subsidiary, as the case may be) Subsidiaries may apply an amount equal to such those Net Cash ProceedsProceeds at its option:
(1) (a) to permanently repay Senior Debt in accordance or reduce Indebtedness, other than Subordinated Indebtedness, of the Company and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; or (b) to permanently repay or reduce Indebtedness of any of the Common Terms Agreement and this Indenture; orCompany’s Restricted Subsidiaries;
(2) to make any capital expenditure or to purchase Replacement Assets (acquire, or enter into a binding agreement to make such capital expenditure acquire, all or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt substantially all of the Net assets (other than cash, Cash Proceeds from the related Asset Sale Equivalents and securities) of any Person engaged in a Permitted Business; provided, however, that any such commitment shall be subject only to customary conditions (ii) other than financing), and such acquisition shall be consummated no later than 180 days after the date end of such 365-day period;
(3) to acquire, or enter into a binding agreement to acquire, Voting Stock of a Person engaged in a Permitted Business from a Person that is not a Subsidiary of the Company; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 365-day period; and provided, further, however, that (a) if the Net Proceeds are from the sale of assets of the Company or any of its Restricted Subsidiaries or the Equity Interests of any of its Restricted Subsidiaries, after giving effect thereto, the Person so acquired becomes a Restricted Subsidiary and (Bb) if such capital expenditure acquisition is otherwise made in accordance with this Indenture, including, without limitation, Section 4.10 hereof;
(4) to acquire, or purchase enter into a binding agreement to acquire, previously issued and outstanding Voting Stock of a non-Wholly Owned Restricted Subsidiary of the Company (a) from a Person that is not an Affiliate of the Company or (b) in a brokered transaction through the facilities of a stock exchange; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated within no later than 180 days after the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.end of such 365-day period;
(c5) to make capital expenditures; or
(6) to acquire, or enter into a binding agreement to acquire, other long-term assets (other than securities) that are used or useful in a Permitted Business; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 365-day period. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will paragraph (c) above shall constitute “Excess Proceeds.” If on any date, ”
(e) When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such dateCdn$100.0 million, the Company will shall make an offer (an “Asset Sale Offer Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu in right of payment with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.093.09 hereof. The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness, plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, to the date of purchase purchase, and will shall be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale OfferOffer and all Holders of Notes have been given the opportunity to tender their Notes for purchase in accordance with such Asset Sale Offer and this Indenture, the Company and its Restricted Subsidiaries may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes and such other pari passu Indebtedness shall be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) . The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will shall comply with the applicable securities laws and regulations and will not shall be deemed not to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.09 Indenture by virtue of such complianceconflict.
Appears in 1 contract
Sources: Indenture (Quebecor Media Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale unless:
: (1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of of; and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2ii) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will be deemed to be cash:
cash or Cash Equivalents: (Aa) any liabilities, as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a written novation agreement that and the lender releases the Company or such Restricted Subsidiary from further liability thereforliability; and
and (Bb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset SaleEquivalents, to the extent of the cash or Cash Equivalents received in that conversion.
(b) . Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) , may apply an amount equal to such Net Cash ProceedsProceeds at its option:
(1) to repay any Senior Debt in accordance with of the Common Terms Agreement and this Indenture; orCompany or any of its Restricted Subsidiaries;
(2) to make any capital expenditure or to purchase Replacement Assets acquire (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; acquire, provided that such commitment shall be subject only to customary conditions (Aother than financing) and such capital expenditure or purchase is acquisition shall be consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date end of such 365 day period) the assets of, or a majority of the Voting Stock of, a Permitted Business or the minority interest in any Restricted Subsidiary;
(3) to make a capital expenditure; or
(4) to acquire (or enter into a binding agreement to acquire, provided that such commitment shall be subject only to customary conditions (other than financing) and (B) if such capital expenditure or purchase is not acquisition shall be consummated within 180 days after the period set forth end of such 365 day period) other long-term assets that are used or useful in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending the final application of any Net Cash Proceeds, the Company may reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An a Permitted Business. If an amount equal to any the Net Cash Proceeds from Asset Sales that are is not applied or invested as provided in the preceding clauses of this Section 4.09 paragraph such amount will constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,00025.0 million, then within ten Business Days after the Company shall make an offer to holders of the Notes (and to holders of other Senior Subordinated Indebtedness of the Company designated by the Company) to purchase Notes (and such dateother Senior Subordinated Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture (the "Asset Sale Offer"). The Company shall purchase Notes tendered pursuant to the Asset Sale Offer at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness of the Company 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 Senior Subordinated Indebtedness of the Company, 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 this Indenture (the "Asset Sale Offer Price"). If the aggregate purchase price of the securities tendered exceeds the Net Proceeds allotted to their purchase, the Company will make an Asset Sale Offer select the securities to be purchased on a pro rata basis but in accordance with Section 3.09. The offer price round denominations, which in any Asset Sale Offer the case of the Notes will be equal to 100% denominations of the $1,000 principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the date of purchase and will be payable in cashor multiples thereof. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) . The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.09 Indenture by virtue of such complianceconflict.
Appears in 1 contract
Sources: Indenture (Airgas East Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) with respect to an Asset Sale involving consideration in excess of $5.0 million, such fair market value is determined by the Company's Board of Directors and (B) evidenced by a resolution of the Board of Directors set forth in an amount equal Officers' Certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciationTrustee; and
(2iii) at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will shall be deemed to be cash:
(Aa) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforliability; and
(Bb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion.
(b) ). Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash ProceedsProceeds at its option:
(1) to repay Senior Debt in accordance and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with the Common Terms Agreement and this Indenture; orrespect thereto;
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending the final application of any Net Cash Proceeds, the Company may reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will constitute “Excess Proceeds.” If on any date, the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date, the Company will make an Asset Sale Offer in accordance with Section 3.09. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of acquire all or substantially all of the assets of, or a majority of the Company and its Voting Stock of, another Permitted Business as long as such Person becomes a Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.Subsidiary;
(f3) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any to make a capital expenditure; or
(4) to acquire other securities laws and regulations thereunder to the extent such laws and regulations long-term assets that are applicable used or useful in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliancePermitted Business.
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its the Company’s Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will be deemed to be cash:
(Aa) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Notes, any Guarantee or any Note Guaranteethe Proceeds Loan) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforin respect of those liabilities; and
(Bb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale60 days, to the extent of the cash or Cash Equivalents received in that conversion.
(b) . Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset SaleSale to be applied as set out in this paragraph, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such those Net Cash Proceeds, at its option:
(1) to repay Senior Debt in accordance with acquire all or substantially all of the Common Terms Agreement and this Indenture; orassets of, or any Share Capital of, a Permitted Business if, after giving effect to any such acquisition of Share Capital, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(2) to make any a capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assetsexpenditure; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.or
(c3) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 paragraph will constitute “Excess Proceeds.” If on any date”. On the 366th day after an Asset Sale, if the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10.0 million, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional InterestAmounts, if any, to, but excluding, to the date of purchase purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis provided that Notes of €50,000 or less may only be purchased in whole and not in part. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.. Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail or its equivalent, a notice to the Trustee and each of the Holders. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section 4.12 (Asset Sales) and the length of time the Asset Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase Date;
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.€1,000 only;
(f) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of €1,000 or integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). On or before the Purchase Date, the Company shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.12 (Asset Sales). The Company, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company shall procure that the Authenticating Agent authenticate and the Trustee shall mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Purchase Date. The Company will comply with the requirements of Rule 14e-1 under the U.S. Exchange Act and any other securities laws and regulations thereunder and stock exchange rules, to the extent such laws those laws, regulations and regulations rules are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations or securities or investment exchange rules conflict with the Asset Sale provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will comply with the applicable securities laws laws, regulations and regulations rules and will not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.09 Indenture by virtue of such complianceconflict.
Appears in 1 contract
Sources: Guarantee Agreement (Central European Distribution Corp)
Asset Sales. (a) The Company ▇▇▇▇▇▇▇ will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company ▇▇▇▇▇▇▇ (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets assets, rights or Equity Interests of a Subsidiary of ▇▇▇▇▇▇▇ issued or sold or otherwise disposed of and of;
(B2) the Fair Market Value is set forth in an amount equal Officers’ Certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciationTrustee; and
(23) at least 9075% of the consideration therefor received in the Asset Sale by the Company ▇▇▇▇▇▇▇ or such Restricted Subsidiary is in the form of cash, Cash Equivalents cash or Replacement Permitted Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s ▇▇▇▇▇▇▇’▇ or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as sheet, of the date of such Asset Sale) of the Company ▇▇▇▇▇▇▇ or any Restricted Subsidiary (other than contingent liabilities and liabilities, liabilities that are by their terms subordinated to the Notes or any Note GuaranteeGuarantee and liabilities to the extent owed to ▇▇▇▇▇▇▇ or any Restricted Subsidiary of ▇▇▇▇▇▇▇) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company ▇▇▇▇▇▇▇ or such Restricted Subsidiary from further liability thereforliability; and
(B) any securities, notes or other obligations received by the Company ▇▇▇▇▇▇▇ or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company ▇▇▇▇▇▇▇ or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion.
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (▇▇▇▇▇▇▇ or the applicable Restricted Subsidiary, as the case may be) Subsidiary may apply an amount equal to such those Net Cash Proceeds:
(1) to repay Senior Debt or prepay secured Indebtedness and Obligations in accordance with respect thereof, of ▇▇▇▇▇▇▇ or any Restricted Subsidiary of ▇▇▇▇▇▇▇, including secured Indebtedness and Obligations under any Credit Facility, other than Indebtedness or other Obligations that are subordinated to the Common Terms Agreement and this Indenture; orNotes;
(2) to make any capital expenditure acquire all or to purchase Replacement Assets substantially all of the assets of, or stock of, another Oil and Gas Business (or enter into a legally binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (Aassets or stock) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 90 days after the date of such binding agreement; provided, however, that if any such legally binding agreement and to invest such Net Proceeds is terminated, then ▇▇▇▇▇▇▇ or the applicable Restricted Subsidiary may within 30 days of such termination or 365 days after the receipt of any Net Proceeds from the applicable Asset Sale, whichever is later, invest such Net Proceeds as provided in clause (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A1), (3) or (4) of this paragraph (b) or to acquire assets or stock of another Oil and Gas Business; provided, further, that, if the amount Net Proceeds are not so applied within that time period, they will immediately be deemed to be Excess Proceeds.Proceeds (as defined below);
(c3) to make a capital expenditure; or
(4) to acquire Permitted Assets. Pending the final application of any Net Cash Proceeds, the Company ▇▇▇▇▇▇▇ or such Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(dc) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses paragraph (b) of this Section 4.09 5.10 will constitute “Excess Proceeds.” If on any date, ”. When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such dateUS$20.0 million, the Company Issuer will make an offer (an “Asset Sale Offer Offer”) to all Holders (excluding Compton or any of its Restricted Subsidiaries) and all holders (excluding ▇▇▇▇▇▇▇ or any of its Restricted Subsidiaries) of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interestinterest, if any, to, but excluding, to the date of purchase purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and ▇▇▇▇▇▇▇ or any of its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will, subject to Section 5.10(f) hereof, select the Notes to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of US$1,000, or integral multiples thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(d) The Asset Sale Offer will remain open for a period of at least 20 Business Days and not more than 30 Business Days (except to the extent that a longer period is required by applicable law) following its commencement (the “Offer Period”).
(e) Notwithstanding Within three Business Days after it becomes obligated to make the Asset Sale Offer, the Issuer will commence the Asset Sale Offer by sending a notice by first class mail to each Holder, at such Holder’s registered address, with a copy to the Trustee. The notice shall (i) contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer and (ii) be accompanied by such information regarding ▇▇▇▇▇▇▇ and its Restricted Subsidiaries as the Issuer in good faith believes will enable Holders to make an informed decision with respect to such Asset Sale Offer. Without limiting the foregoing, the salenotice, conveyance or other disposition of all or substantially all which will govern the terms of the assets Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this Section 5.10 and the length of time the Asset Sale Offer will remain open;
(2) the amount of Excess Proceeds, the Offer Amount (as defined below), the purchase price and the Purchase Date (as defined below);
(3) that any Note (or portion thereof) not tendered or accepted for payment will continue to accrue interest;
(4) that, unless the Issuer defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;
(5) that a Holder electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of US$1,000 only;
(6) that a Holder electing to have a Note purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Company Note completed, or transfer the Note by book-entry transfer, to the Issuer, a Depositary, if appointed by the Issuer, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(7) that a Holder will be entitled to withdraw his election if the Issuer, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and its Restricted Subsidiariesa statement that such Holder is withdrawing his election to have such Note purchased;
(8) that, taken if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders exceeds the Excess Proceeds, the Trustee will, subject to Section 5.10(f) hereof, select the Notes to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as a wholemay be deemed appropriate by the Trustee so that only Notes in denominations of US$1,000, or integral multiples thereof, will be governed purchased); and
(9) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09book-entry transfer).
(f) No Note in principal amount of US$1,000 or less can be purchased in part; except that if all of the Notes of a Holder are to be purchased pursuant to an Asset Sale Offer, the entire outstanding amount of Notes held by such Holder, even if not a multiple of US$1,000, shall be purchased.
(g) One Business Day prior to the end of the Offer Period (the last day of the Offer Period being herein called the “Purchase Date”), the Issuer will deposit with the Trustee or with the Paying Agent money sufficient to pay the purchase price of all Notes to be purchased on that Purchase Date, including accrued and unpaid interest on such Notes (the amount required to purchase such Notes and other pari passu Indebtedness being referred to herein as the “Offer Amount”). The Company Trustee or the Paying Agent will promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the purchase price of, and accrued and unpaid interest on, all Notes to be purchased.
(h) On a date that is no later than three Business Days after the Purchase Date, the Issuer will, to the extent lawful:
(1) accept for payment, on a pro rata basis to the extent necessary, all Notes (or any portions thereof) and other pari passu Indebtedness, in each case to the extent tendered pursuant to the Asset Sale Offer and required to be purchased by the Issuer pursuant to this Section 5.10; and
(2) 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 Issuer and that such Notes were accepted for payment by the Issuer in accordance with the terms of this Section 5.10.
(i) The Issuer, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than three Business Days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Issuer for purchase, and the Issuer will promptly issue a new Note, and the Trustee, upon written request from the Issuer will authenticate at the expense of the Issuer and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided, however, that each such Note shall be in a principal amount of US$1,000 or an integral multiple thereof. Any Note not so accepted shall be promptly mailed or delivered by or on behalf of the Issuer to the Holder thereof. The Issuer will publicly announce the results of the Asset Sale Offer on the Business Day following the Purchase Date.
(j) If an interest payment date is on or prior to the applicable Purchase Date, the accrued interest payable on such interest payment date shall be paid on such interest payment date to the Person in whose name the Note is registered at the close of business on the relevant interest payment record date.
(k) For purposes of this Section 5.10, the Issuer will be required to comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations5.10, the Company Issuer will be required to comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 such provisions by virtue of such complianceconflict.
Appears in 1 contract
Asset Sales. Neither Holdings nor the Parent Borrower will, nor will they permit any Subsidiary to, sell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it, nor will Holdings and the Parent Borrower permit any Subsidiary to issue any additional Equity Interest in such Subsidiary (other than directors’ qualifying shares or to the extent required by applicable law) (each referred to for purposes of this definition as a “disposition”), except:
(a) The Company will notsales of inventory, used or surplus equipment and Permitted Investments, in each case in the ordinary course of business;
(b) disposals of inventory pursuant to promotional or similar activities in the ordinary course of business;
(c) dispositions in the ordinary course of business of property no longer used or useful in the conduct of the business of Holdings and the Subsidiaries;
(d) dispositions to the Parent Borrower or a Subsidiary; provided that any such disposition to any Subsidiary that is not a Loan Party by any Loan Party shall, unless such disposition is made at a price and on terms and conditions not less favorable to each applicable Loan Party in any material respect than could be obtained on an arm’s-length basis from unrelated third parties, be deemed to be an investment and shall only be permitted to the extent it would be permitted under Section 6.04;
(e) the sale or discount (with or without recourse, and will not permit any on customary or commercially reasonable terms) in the ordinary course of its Restricted Subsidiaries tobusiness of accounts receivable or notes receivable arising in the ordinary course of business, consummate an Asset Sale unless:or the conversion or exchange of accounts receivable for notes receivable in the ordinary course of business;
(1f) (i) any exchange of real property pursuant to or intended to qualify under Section 1031 (or any successor section) of the Code or (ii) dispositions of equipment in the ordinary course of business to the extent that (A) such equipment is exchanged for credit against the purchase price of similar replacement equipment or (B) the Company proceeds of such disposition are promptly applied to the purchase price of such replacement equipment;
(g) any disposition arising from condemnation or similar action with respect to any property or other assets, or voluntary exercise of termination rights under any lease, license, concession or other agreement or pursuant to buy/sell arrangements under any joint venture or similar agreement or arrangement;
(h) the lapse or abandonment or other disposition of patents, trademarks or other intellectual property that are, in the reasonable judgment of the Parent Borrower, no longer economically practicable to maintain or useful in the conduct of the business of Holdings and the other Subsidiaries taken as a whole;
(i) leases, subleases, licenses or sublicenses (including the provision of software under an open source license), in each case in the ordinary course of business and which do not materially interfere with the business of Holdings and the Subsidiaries, taken as a whole;
(j) the unwinding of Swap Agreements
(k) dispositions of accounts receivable in connection with the collection or compromise thereof;
(l) (i) any dividend or other Restricted Payment permitted pursuant to (or expressly not prohibited by) Section 6.07, (ii) any investment pursuant to Section 6.04 and (iii) any Lien permitted by Section 6.02;
(m) sales of fixed or capital assets pursuant to Section 6.06(a);
(n) any issuance of Equity Interests by, or disposition of Equity Interests of, any Subsidiary that is not a Material Subsidiary;
(o) sales and transfers (including Sale/Leaseback Transactions permitted by Section 6.06) of real estate of any Loan Party so long as (i) no Event of Default then exists or would arise therefrom, and (ii) such sale or transfer is made for fair market value and the Restricted consideration received for such sale or transfer is at least 75% cash;
(p) so long as no Event of Default exists or would arise as a result of the transaction, sales of a Subsidiary that is not a Loan Party or sales of an Excluded Subsidiary (i) to any Person other than a Loan Party or a Subsidiary, for fair market value and so long as the consideration received for such sale or transfer is at least 75% cash or cash equivalents, or (ii) to a Subsidiary, if such sale or transfer is for fair market value and the entire consideration received for such sale or transfer is paid in cash or cash equivalents;
(q) bulk sales or other dispositions of Inventory of a Loan Party not in the ordinary course of business in connection with the closing of stores (i) during any Fiscal Year representing not more than 20% of the total stores of Holdings and its Subsidiaries as of the first day of such Fiscal Year and (ii) during the term of this Agreement representing not more than 40% of the total stores of Holdings and its Subsidiaries as of the Closing Date, provided that (i) any such sale or disposition is at arm’s-length, (ii) the consideration received for such sale or disposition is at least 75% cash (or, in the case may beof any sale, transfer or other disposition of more than 10% of the Collateral, 90% cash), and (iii) receives a professional liquidator acceptable to the Administrative Agent shall have been engaged in connection with any sale or other disposition of more than 10% of the Collateral;
(r) sales, transfers and other dispositions of assets (other than Equity Interests in a Material Subsidiary) that are not permitted by any other clause of this Section, provided that (i) each such sale, transfer or disposition shall be made at fair value and for at least 75% cash consideration (or, in the case of any sale, transfer or other disposition of more than 10% of the Collateral, 90% cash consideration), (ii) at the time any such sale, transfer or other disposition is consummated and after giving effect thereto, the aggregate fair market value of the Asset Sale equal to the greater of (A) the Fair Market Value of the all assets or Equity Interests issued or sold sold, transferred or otherwise disposed of and in reliance on this clause (Br) an amount equal to during the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 90% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes term of this provision, each of Agreement shall not exceed $500,000,000 (and in any event the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee value of any such assets pursuant constituting Collateral so sold, transferred or otherwise disposed of in reliance on this clause (r) shall not exceed $200,000,000 during the term of this Agreement), (iii) a professional liquidator acceptable to a written novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
(B) Administrative Agent shall have been engaged in connection with any securitiessale, notes transfer or other obligations received by disposition of more than 10% of the Company or Collateral and (iv) at the time any such Restricted Subsidiary from such transferee that are converted by the Company sale, transfer or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Saleother disposition is consummated, to the extent of the cash or Cash Equivalents received in that conversion.
(b) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1) to repay Senior Debt in accordance with the Common Terms Agreement no Default shall have occurred and this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assetsbe continuing; provided that (A) such capital expenditure or purchase is consummated within the later of all sales, transfers, leases and other dispositions permitted hereby (iother than those permitted by clauses (b), (d), (h), (j) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (iil) 180 days after the date of such binding agreement above) shall be made for fair value, and (B) if such capital expenditure no sale or purchase transfer of any Intellectual Property (as defined in the Collateral Agreement) shall be made that would result in the loss by Holdings and the Subsidiaries of the free and unconditional use of the jcpenney name or any trade name or brand name needed for the disposition of any Eligible Inventory or prevent, delay, hinder or increase the cost of the Administrative Agent’s exercise of its rights under the license to Intellectual Property granted under the Collateral Agreement (it being understood that this clause (B) is not consummated within intended to prevent the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending the final application grant of any Net Cash Proceeds, license or Lien on Intellectual Property so long as all rights necessary to enable the Company may reduce revolving credit borrowings Administrative Agent to exercise its rights in respect of the Collateral are reserved). This Section shall not be construed to prohibit transfers of cash by Holdings or otherwise invest the Net Cash Proceeds in any manner of its Subsidiaries that is are not prohibited by this Indenture.
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses other provision of this Section 4.09 will constitute “Excess ProceedsAgreement.” If on any date, the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date, the Company will make an Asset Sale Offer in accordance with Section 3.09. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Sources: Credit Agreement (J C Penney Co Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an any Asset Sale unless:
Sale, unless (1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 90% of the consideration therefor received by the Company or such Restricted Subsidiary is in at least equal to the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each fair market value of the following will be deemed to be cash:
assets sold or disposed of and (Aii) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as at least 75% of the date of such Asset Sale) of the Company or any Restricted Subsidiary consideration (other than excluding contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to assets) received consists of cash or Temporary Cash Investments or the assumption of Senior Indebtedness of the Company or a written novation agreement Subsidiary Guarantor, provided that releases the Company or such Restricted Subsidiary is irrevocably released from further all liability therefor; and
(B) any securities, notes or other obligations received by the Company or any under such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion.
(b) Indebtedness. Within 360 days after the receipt of any Net Cash Proceeds from an Asset SaleSale (other than Barbary Excess Net Cash Proceeds), the Company shall or shall cause the relevant Restricted Subsidiary to (or the applicable Restricted Subsidiary, as the case may bei)(A) may apply an amount equal to such Net Cash Proceeds:
(1) Proceeds to permanently repay Senior Debt in accordance with Indebtedness of the Common Terms Agreement and this Indenture; or
Company or a Subsidiary Guarantor or (2B) invest an equal amount, or the amount not so applied pursuant to make any capital expenditure or to purchase Replacement Assets clause (A) (or enter into a binding definitive agreement committing to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated so invest within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days 12 months after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (Aagreement), in property or assets (other than current assets) of a nature or type or that are used in a business (or in Capital Stock of a company having property and assets of a nature or type, or engaged in a business) similar or related to the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending nature or type of the final application of any Net Cash Proceedsproperty and assets of, or the business of, the Company may reduce revolving credit borrowings or otherwise invest and its Restricted Subsidiaries existing on the date of such investment and (ii) apply (no later than the end of the 12-month period referred to in clause (i)) such excess Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are the extent not applied or invested pursuant to clause (i)) as provided in the preceding clauses following paragraph of this Section 4.09 will 4.17. The amount of such excess Net Cash Proceeds required to be applied (or to be committed to be applied) during such 12-month period as set forth in clause (i) of the preceding sentence and not applied as so required by the end of such period shall constitute “"Excess Proceeds.” If on " Pending application of such Net Cash Proceeds by the end of the relevant period, the Company and its Restricted Subsidiaries may use such Net Cash Proceeds to temporarily repay revolving Indebtedness. If, as of the first day of any datecalendar month, the aggregate amount of Excess Proceeds exceeds not theretofore subject to an Offer to Purchase pursuant to this Section 4.17 totals at least $100,000,000, then within ten Business Days after such date10.0 million, the Company will make must commence, not later than the fifteenth Business Day of such month, an Asset Sale Offer in accordance with Section 3.09. The to Purchase to the Holders and, to the extent required by the terms of any Pari Passu Indebtedness, an Offer to Purchase to all holders of such Pari Passu Indebtedness, the maximum principal amount of Notes and any such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds, at an offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus thereof, plus, in each case, accrued and unpaid interest and Additional Interest, if any, to, but excluding, to the date of purchase and will be payable in cashPayment Date. If the aggregate principal amount of Notes and any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited such Pari Passu Indebtedness tendered by this Indenture. Upon completion of each Asset Sale Offer, holders thereof exceeds the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoingProceeds, the sale, conveyance or other disposition of all or substantially all of the assets of the Company Notes and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.Pari
Appears in 1 contract
Sources: Indenture (Coast Resorts Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the aggregate consideration therefor received in the Asset Sale by the Company or such a Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provisionclause (2) only, each of the following will be deemed to be cash:
(Aa) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies against further liability therefor; andliability;
(Bb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are are, within 30 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion.; and
(bc) any stock or assets of the kinds referred to in clauses (2) or (4) of the next paragraph of this covenant. Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the applicable following:
(1) to repay, purchase, repurchase, redeem, defease or otherwise acquire, retire or terminate (a) Indebtedness and all other Obligations related thereto that are secured by a Lien or (b) Obligations under Indebtedness of a Restricted Subsidiary that is not a Guarantor (other than Indebtedness owed to the Issuer or another Restricted Subsidiary);
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiary’s Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clauses (2) through (4) of the preceding paragraph shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any Restricted Subsidiary, as the case may be) may apply , with a Person other than an amount equal to Affiliate of the Company within the time period specified in the preceding paragraph and such Net Cash Proceeds:
(1) to repay Senior Debt Proceeds are subsequently applied in accordance with the Common Terms Agreement and this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated contract within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after six months following the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) entered into. Pending the final application of any Net Cash Proceeds, the Company (or any Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any hereby. Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses second paragraph of this Section 4.09 covenant will constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,00020.0 million, then within ten 10 Business Days after such datethereof, the Company will make an offer (an “Asset Sale Offer Offer”) to all Holders of Notes, and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth herein with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets, to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in accordance with Section 3.09connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount amount, plus accrued and unpaid interest and Additional Special Interest, if any, to, but excluding, to the date of purchase purchase, prepayment or redemption, subject to the rights of holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its or any Restricted Subsidiaries Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited hereby. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased, prepaid or redeemed on a pro rata basis (except that any Notes represented by this Indenturea Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) . The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed not to have breached its obligations under Section 3.09 or this Section 4.09 4.10 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (ax) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate make an Asset Sale unless:
(1) the Company (or the any of its Restricted Subsidiary, as the case may be) Subsidiaries receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiaries is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provisionclause (2) (and not for purposes of determining the Net Proceeds received from the Asset Sale), each of the following will shall be deemed to be cash:
(A) any liabilities, liabilities (as shown on the face of the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies against further liability therefor; andwith respect thereto;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are within 180 days of such Asset Sale, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset SaleEquivalents, to the extent of the cash or Cash Equivalents received in that conversion.;
(bC) Within 360 days after any stock or assets of the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal kind referred to such Net Cash Proceeds:
(1) to repay Senior Debt in accordance with the Common Terms Agreement and this Indenture; or
clauses (2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A4) such capital expenditure or purchase is consummated within the later of (iSection 4.10(b) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.hereof;
(cD) Pending the final application consideration consisting of any Net Cash Proceeds, the Company may reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will constitute “Excess Proceeds.” If on any date, the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date, the Company will make an Asset Sale Offer in accordance with Section 3.09. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets Indebtedness of the Company and its or any Restricted SubsidiariesSubsidiary (other than Subordinated Indebtedness) received after the Issue Date from Persons who are not the Company or any Restricted Subsidiary such that the Company or such Restricted Subsidiary no longer owes such Indebtedness to any Person other than the Company or a Restricted Subsidiary; and
(E) any Designated Noncash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken as a whole, will be governed by together with all other Designated Noncash Consideration received pursuant to this clause (E) that has not previously been converted to cash not to exceed the provisions greater of Section 4.14 and/or $25.0 million and 2.5% of Consolidated Total Assets of the provisions Company at the time of Section 5.01 and not by the provisions receipt of this Section 4.09.
such Designated Noncash Consideration (f) The Company will comply with the requirements Fair Market Value of Rule 14e-1 under each item of Designated Noncash Consideration being measured at the Exchange Act time received and any other securities laws and regulations thereunder without giving effect to the extent such laws and regulations are applicable subsequent changes in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliancevalue).
Appears in 1 contract
Sources: Indenture (World Acceptance Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater fair market value (evidenced by a resolution of (Athe Board of Directors set forth in an Officers' Certificate delivered to the Trustee) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) except in the case of a Tower Asset Exchange, at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will shall be deemed to be cash:
(A1) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Debentures or any Note Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforliability; and
(B2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 20 days after such of the applicable Asset Sale, Sale (to the extent of the cash or Cash Equivalents received in that conversion.
(b) received). Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) Subsidiary may apply an amount equal to such Net Cash ProceedsProceeds to:
(1) to repay reduce any Indebtedness of the Company that constitutes Senior Debt in accordance with Debt;
(2) reduce any Indebtedness of any of the Common Terms Agreement Company's Restricted Subsidiaries;
(3) the acquisition of all or substantially all the assets of a Permitted Business;
(4) the acquisition of Voting Stock of a Permitted Business from a Person that is not a Subsidiary of the Company; provided, that, after giving effect thereto, the Company or its Restricted Subsidiary owns a majority of such Voting Stock and this Indenturedesignates such Permitted Business as a Restricted Subsidiary; or
(25) to make any the making of a capital expenditure or to purchase Replacement Assets (the acquisition of other long-term assets that are used or enter into useful in a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Permitted Business. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses first sentence of this Section 4.09 will paragraph shall be deemed to constitute “"Excess Proceeds.” If on any date, ". When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10.0 ---------------- million, the Company will shall be required to make an offer to all holders of Senior Discount Notes and may be required to make such offer to holders of other Senior Debt of the Company then outstanding (a "Senior Asset Sale Offer in accordance with Section 3.09. The Offer") to purchase ----------------------- the maximum principal amount of the Senior Discount Notes and such other Senior Debt, if applicable, that may be purchased out of the Excess Proceeds, at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount or accreted value thereof, as the case may be, plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in the Senior Discount Notes Indenture and in the instruments governing such other Senior Debt. To the extent that the aggregate amount of Senior Discount Notes and such other Senior Debt tendered pursuant to a Senior Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) ------------------------- such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Senior Asset Sale Offers exceeds $3.0 million, the Company shall be required to make an offer to all Holders of Debentures and all holders of other senior subordinated Indebtedness of the Company containing provisions similar to those set forth in this Indenture with respect to offers to purchase with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the ---------------- maximum principal amount of Debentures and such other senior subordinated Indebtedness of the Company that may be purchased out of the Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages thereon, if any, to, but excluding, to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest and will be payable Liquidated Damages, if any, due on the relevant interest payment date), in cashaccordance with the procedures set forth in this Indenture and such other senior subordinated Indebtedness of the Company. If To the extent that any Remaining Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Debentures and such other senior subordinated Indebtedness of the Company tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds, the Trustee shall select the Debentures and such other senior subordinated Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance . The Asset Sale provisions described above shall be applicable whether or not any other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) Indenture are applicable. The Company will comply shall comply, to the extent applicable, with the requirements of Rule 14e-1 under Section 14(e) of the Exchange Act and any other securities laws and or regulations thereunder applicable to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an any Asset Sale Offer. To the extent that the provisions of any such securities laws or securities regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations4.10, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 4.10 by virtue of such compliancethereof.
Appears in 1 contract
Sources: Exchange Indenture (Crown Castle International Corp)
Asset Sales. (a) The Company MagnaChip will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company MagnaChip (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company MagnaChip or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted SubsidiaryUS LLC’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as sheet, of the date of such Asset Sale) of the Company MagnaChip or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written novation agreement customary arrangement that releases the Company MagnaChip or such Restricted Subsidiary from further liability therefor; andliability;
(B) any securities, notes or other obligations received by the Company MagnaChip or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company MagnaChip or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset SaleEquivalents, to the extent of the cash or Cash Equivalents received in that conversion; and
(C) any stock or assets of the kind referred to in Section 4.10(b)(2) or (4) hereof.
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company MagnaChip (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash ProceedsProceeds at its option:
(1) to repay Senior Debt in accordance and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with the Common Terms Agreement and this Indenture; orrespect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, a Person engaged in a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of US LLC;
(3) to make a capital expenditure;
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(5) any capital expenditure or to purchase Replacement Assets combination of (or enter 1) – (4) of this Section 4.10(b). In the case of clauses (2) and (4) MagnaChip will also comply with its obligations above if it enters into a binding agreement commitment to make acquire such capital expenditure assets or to purchase such Replacement Assets; Capital Stock within the required time frame above, provided that (A) such capital expenditure or purchase is binding commitment shall be subject only to customary conditions and such acquisition shall be consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds six months from the related Asset Sale and (ii) 180 days after the date of signing such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) commitment. Pending the final application of any Net Cash ProceedsProceeds pursuant to this paragraph, MagnaChip and the Company Restricted Subsidiaries may apply such Net Proceeds to temporarily reduce Indebtedness outstanding under a revolving credit borrowings facility or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(dc) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses second and third paragraphs of this Section 4.09 4.10 will constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,00010 million, then within ten Business Days after such date30 days thereof, the Company MagnaChip will make an Asset Sale Offer to all holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to, but excluding, to the date of purchase (or, in respect of such other pari passu Indebtedness of MagnaChip, such lesser price, if any, as may be provided for by the terms of such pari passu Indebtedness), and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries MagnaChip may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(ed) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company MagnaChip will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.09section 4.10, or compliance MagnaChip will comply with the Asset Sale provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company MagnaChip will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.09 4.10 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (MagnaChip Semiconductor LTD (United Kingdom))
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
(1) the Company (Company, or the Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in such Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Equivalents, Replacement Assets or a combination thereof. For purposes of this provisionclause (3), each of the following will shall be deemed to be cash:
(Aa) any Indebtedness or other liabilities, as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities Indebtedness that are by their terms subordinated to the Notes or any Note Guarantee) Notes), that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforwith respect to such Indebtedness or liabilities; and
(Bb) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 90 days of the applicable Asset Sale by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that such conversion.
(b) [Reserved].
(c) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable any of its Restricted Subsidiary, as the case may be) Subsidiaries may apply an amount equal to such those Net Cash ProceedsProceeds at its option:
(1) (a) to permanently repay Senior Debt in accordance or reduce Indebtedness, other than Subordinated Indebtedness, of the Company and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; or (b) to permanently repay or reduce Indebtedness of any of the Common Terms Agreement and this Indenture; orCompany's Restricted Subsidiaries;
(2) to make any capital expenditure or to purchase Replacement Assets (acquire, or enter into a binding agreement to make such capital expenditure acquire, all or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt substantially all of the Net assets (other than cash, Cash Proceeds from the related Asset Sale Equivalents and securities) of any Person engaged in a Permitted Business; provided, however, that any such commitment shall be subject only to customary conditions (ii) other than financing), and such acquisition shall be consummated no later than 180 days after the date end of such 360-day period;
(3) to acquire, or enter into a binding agreement to acquire, Voting Stock of a Person engaged in a Permitted Business from a Person that is not a Subsidiary of the Company; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 360-day period; and provided, further, however, that (a) if the Net Proceeds are from the sale of assets of the Company or any of its Restricted Subsidiaries or the Equity Interests of any of its Restricted Subsidiaries, after giving effect thereto, the Person so acquired becomes a Restricted Subsidiary and (Bb) if such capital expenditure acquisition is otherwise made in accordance with this Indenture, including, without limitation, Section 4.10 hereof;
(4) to acquire, or purchase enter into a binding agreement to acquire, previously issued and outstanding Voting Stock of a non-Wholly Owned Restricted Subsidiary of the Company (a) from a Person that is not an Affiliate of the Company or (b) in a brokered transaction through the facilities of a stock exchange; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated within no later than 180 days after the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.end of such 360-day period;
(c5) to make capital expenditures; or
(6) to acquire, or enter into a binding agreement to acquire, other long-term assets (other than securities) that are used or useful in a Permitted Business; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 360-day period. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will paragraph (c) above shall constitute “"Excess Proceeds.” If on any date, "
(e) When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such dateCnd$100.0 million, the Company will shall make an offer (an "Asset Sale Offer Offer") to all Holders of Notes and all holders of other Indebtedness that is pari passu in right of payment with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds in accordance with the procedures set forth in Section 3.093.09 hereof. The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness, plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, to the date of purchase purchase, and will shall be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale OfferOffer and all Holders of Notes have been given the opportunity to tender their Notes for purchase in accordance with such Asset Sale Offer and this Indenture, the Company and its Restricted Subsidiaries may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes and such other pari passu Indebtedness shall be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) . The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will shall comply with the applicable securities laws and regulations and will not shall be deemed not to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.09 Indenture by virtue of such complianceconflict.
Appears in 1 contract
Sources: Indenture (Quebecor Media Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; andliability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such of the closing of the Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion.; and
(bC) any stock or assets of the kind referred to in clauses (2) or (4) of the next paragraph of this Section 4.10. Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash ProceedsProceeds at its option:
(1) to repay Senior Debt in accordance with the Common Terms Agreement and this Indenture; orDebt;
(2) to make acquire all or substantially all of the assets of, or any capital expenditure Capital Stock of, another Permitted Business (including by means of a merger, consolidation or other business combination permitted under this Indenture), if, after giving effect to purchase Replacement Assets any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(or enter into a binding agreement 3) to make such a capital expenditure or to purchase such Replacement Assetsexpenditure; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.or
(c4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Cash Proceeds, the Company and any Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses second paragraph of this Section 4.09 4.10 will constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,00015.0 million, then within ten Business Days after such date30 business days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount of the Notes being repurchased plus accrued and unpaid interest and Additional Special Interest, if any, to, but excluding, to the date of purchase purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness 54 to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) . The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.09 4.10 by virtue of such compliance. The agreements governing the Company's outstanding Senior Debt place certain restrictions on the Company with respect to purchasing any Notes, and also provide that certain change of control or asset sale events with respect to the Company would constitute a default under certain of these agreements. Any future credit agreements or other agreements relating to Senior Debt to which the Company becomes a party may contain similar restrictions and provisions. In the event a Change of Control or Asset Sale occurs at a time when the Company is prohibited from purchasing Notes, the Company could seek the consent of certain of its senior lenders to the purchase of Notes or could attempt to refinance the borrowings that contain such prohibition. If the Company does not obtain such a consent or repay such borrowings, the Company will remain prohibited from purchasing Notes. In such case, the Company's failure to purchase tendered Notes would constitute an Event of Default under this Indenture which would, in turn, constitute a default under such Senior Debt. In such circumstances, the subordination provisions in this Indenture would likely restrict payments to the holders of Notes.
Appears in 1 contract
Sources: Indenture (Carmike Cinemas Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate complete an Asset Sale unless:
(1) the Company (or the its Restricted Subsidiary, as the case may be) , receives consideration at the time of the such Asset Sale at least equal to the greater of (A) the Fair Market Value of Value, as determined in good faith by the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost Company, of the assets sold or otherwise disposed of, less depreciation; and;
(2) at least 9075% of the consideration therefor received by the Company or such the Restricted Subsidiary in the Asset Sale is in the form of cashcash or Cash Equivalents; and
(3) to the extent that any consideration received by the Company or any Restricted Subsidiary in such Asset Sale constitutes securities or other assets that are of a type or class that constitutes Collateral, Cash Equivalents such securities or Replacement Assets other assets are added to the Collateral securing the Notes in the manner and to the extent required by this Indenture or a combination thereof. any of the Collateral Documents with the Lien on such Collateral securing the Notes being of the same priority with respect to the Notes as the Lien on the assets disposed of in the Asset Sale.
(b) For purposes of this provisiondetermining the amount of cash received in an Asset Sale, each of the following will shall be deemed to be cash:
(A1) the amount of any liabilities, as shown liabilities on the Company’s or such any Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforassets; and
(B2) the amount of any securities, notes or other obligations received by the Company or any such the Restricted Subsidiary from such the transferee that are is converted within 180 days by the Company or such the Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversionreceived.
(bc) Within 360 If the Company or any of its Restricted Subsidiaries receives Net Proceeds from an Asset Sale, then within 365 days after the date of receipt of such Net Proceeds, or if the Company or any of its Restricted Subsidiaries has entered into a binding commitment or commitments with respect to any of the actions described in clause (3) below, within the later of (x) 365 days after the date the aggregate amount of Net Proceeds exceeds $15 million or (y) 180 days after the entering into such commitment or commitments, the Company or any such Restricted Subsidiary must apply the amount of such Net Proceeds in one or more of the following ways:
(1) to repay First Lien Indebtedness (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto) (provided that if the Company or any Subsidiary Guarantor shall so reduce Obligations under First Lien Indebtedness, the Company will equally and ratably reduce Obligations under the Notes pursuant to Section 3.07, through open market purchases (provided that 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 Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, the pro rata principal amount of Notes),
(2) if the assets disposed of in the Asset Sale were not Collateral, to repay other Senior Pari Passu Indebtedness (provided that if the Company or any Subsidiary Guarantor shall so reduce Obligations under such other Senior Pari Passu Indebtedness, the Company will equally and ratably reduce Obligations under the Notes pursuant to Section 3.07, through open market purchases (provided that 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 Sale Offer) to all Holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, the pro rata principal amount of Notes), in each case other than Indebtedness owed to the Company or an affiliate of the Company, or
(3) to make an investment (including by acquisition) in assets or capital expenditures used or useful in or related to a Permitted Business; provided, in each case, that to the extent that such assets are of the type that would constitute Collateral, such assets are pledged as Collateral under this Indenture and the Collateral Documents as required thereby with the Lien on such Collateral securing the Notes. Any Net Proceeds from an Asset Sale that are not applied or invested in any of the ways specified in clauses (1), (2) or (3) above will be considered “Excess Proceeds.”
(d) Pending the final application of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable any Restricted Subsidiary, as the case Subsidiary may be) may apply an amount equal to such Net Cash Proceeds:
(1) to repay Senior temporarily reduce borrowings under any revolving Debt in accordance with the Common Terms Agreement and this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending the final application of any Net Cash Proceeds, the Company may reduce revolving credit borrowings Facilities or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d1) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date15 million, the Company Issuers will make an offer (an “Asset Sale Offer Offer”) to all Holders (and, at the option of the Company, to holders of any other First Lien Indebtedness and, in accordance with Section 3.09. The offer price in any the case of an Asset Sale Offer will of assets that are not Collateral, to holders of any other Senior Pari Passu Indebtedness), to purchase for cash the maximum principal amount of Notes (and such other First Lien Indebtedness or Senior Pari Passu Indebtedness, as applicable) that may be purchased out of the Excess Proceeds at a purchase price equal to 100% of the principal amount thereof (or, in the event such First Lien Indebtedness or Senior Pari Passu Indebtedness, as applicable, was issued with significant original issue discount, 100% of the accreted value thereof) plus accrued and unpaid interest and Additional Interest(or, in respect of such First Lien Indebtedness or Senior Pari Passu Indebtedness, as applicable, such lesser price, if any, as may be provided for by the terms of such Indebtedness) to, but excluding, the date of purchase and will be payable in cash. If any purchase.
(2) To the extent that the amount of Excess Proceeds remain unapplied after consummation exceeds the aggregate amount of an Notes (and such First Lien Indebtedness or Senior Pari Passu Indebtedness, as applicable) tendered in response to such Asset Sale Offer, the Company and its or any Restricted Subsidiaries Subsidiary may use those such excess amount for general business purposes. If the aggregate principal amount of Notes (and such First Lien Indebtedness or Senior Pari Passu Indebtedness, as applicable) tendered in response to such Asset Sale Offer exceeds the amount of Excess Proceeds Proceeds, the Issuers shall purchase Notes and any such other First Lien Indebtedness or Senior Pari Passu Indebtedness, as applicable, on a pro rata basis in proportion to the aggregate principal amount of the Notes and such First Lien Indebtedness or Senior Pari Passu Indebtedness, as applicable, tendered, and the Trustee shall select the Notes to be purchased in accordance with the procedures for any purpose not otherwise prohibited by this Indentureselection and notice of redemption set forth in Section 3.02. Upon completion of each any Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e1) Notwithstanding The Asset Sale Offer shall be made to all Holders and all holders of such other First Lien Indebtedness or Senior Pari Passu Indebtedness, as applicable. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the foregoingextent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the saleIssuers will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other First Lien Indebtedness or Senior Pari Passu Indebtedness, conveyance as applicable (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and such other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.
(2) If the Purchase Date is on or other disposition after an interest record date and on or before the related interest payment date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of all or substantially all business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
(3) Upon the commencement of an Asset Sale Offer, the Issuers will send, by first class mail, a notice to the Trustee and each of the assets Holders, with a copy to the Trustee. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Company Asset Sale Offer, will state:
(A) that the Asset Sale Offer is being made pursuant to this Section 4.10 and its Restricted Subsidiariesthe length of time the Asset Sale Offer will remain open;
(B) the Offer Amount, taken the purchase price and the Purchase Date;
(C) that any Note not tendered or accepted for payment will continue to accrue interest;
(D) that, unless the Issuers default in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;
(E) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased only in denominations of $2,000 and integral multiples of $1,000 in excess thereof;
(F) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer by book-entry transfer, to the Issuers, a Depositary, if appointed by the Issuers, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(G) that Holders will be entitled to withdraw their election if the Issuers, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a wholefacsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(H) that, if the aggregate principal amount of Notes and other Senior Pari Passu Indebtedness surrendered by Holders exceeds the Offer Amount, the Issuers will select the Notes and other Senior Pari Passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other Senior Pari Passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Issuers so that only Notes in denominations of $2,000, or integral multiples in excess thereof, will be governed purchased); and
(I) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).
(4) On or before the Purchase Date, the Issuers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver to the Trustee an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the provisions of Section 4.14 and/or Issuers in accordance with the provisions of Section 5.01 and not by the provisions terms of this Section 4.094.10. The Issuers, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Issuers for purchase, and the Issuers will promptly issue a new Note, and the Trustee, upon written request from the Issuers, will authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Issuers to the Holder thereof. The Issuers will publicly announce the results of the Asset Sale Offer on the Purchase Date.
(fg) The Company In connection with any Asset Sale Offer, the Issuers will follow the procedures set forth in this Indenture and will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offerthereunder. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations4.10, the Company Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its their obligations under Section 3.09 or this Section 4.09 4.10 by virtue of such complianceconflict.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value (determined, for purposes of this clause (i), by the Company or, in the case of any asset(s) valued in excess of $10 million, by the Board of Directors of the Company, in each case evidenced by an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2ii) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeSecurities) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforliability; and
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion.
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such those Net Cash Proceeds:
(1i) to repay Senior Debt Indebtedness and other Obligations under a Credit Facility and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(ii) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(iii) to make a capital expenditure in accordance with the Common Terms Agreement and this Indentureor that is useful in a Permitted Business;
(iv) to retire Securities pursuant to privately negotiated transactions, open market purchases or otherwise; or
(2v) to make any capital expenditure acquire other assets that are not classified as current assets (for the avoidance of doubt, including acquisitions of in-process research and development) under GAAP and that are used or to purchase Replacement Assets (or enter into useful in a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Permitted Business. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(dc) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will 4.14(b) hereof shall constitute “Excess Proceeds"EXCESS PROCEEDS.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10.0 million, the Company will shall make an Asset Sale Offer in accordance with Section 3.09offer (an "ASSET SALE OFFER") to all Holders of Securities and all holders of Parity Indebtedness to purchase the maximum principal amount of Securities and such other Parity Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, to the date of purchase purchase, and will shall be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Securities and other Parity Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Company shall select the Securities and such other Parity Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(fd) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes Securities pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.09 Indenture by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Ribapharm Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater fair market value (evidenced by a resolution of (Athe Board of Directors set forth in an Officers' Certificate delivered to the Trustee) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2ii) at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents, Cash Equivalents or Replacement Assets or a combination thereof. For purposes provided that the amount of this provision, each of the following will be deemed to be cash:
(Ax) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Salesheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
and (By) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to extent of the cash received) within 90 180 days after following the closing of such Asset Sale, shall be deemed to the extent be cash for purposes of the cash or Cash Equivalents received in that conversion.
(b) this provision. Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiaries may apply such Net Proceeds, at its option, (a) to permanently repay or retire Senior Debt, or (b) to the investment in, or the making of a capital expenditure or the acquisition of other long-term assets, in each case used or useable in a Permitted Business, from a party other than the Company or a Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1) to repay Senior Debt in accordance with the Common Terms Agreement and this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) the acquisition of Capital Stock of any Person primarily engaged in a Permitted Business if, as a result of the acquisition by the Company or any Restricted Subsidiary thereof, such Person becomes a Restricted Subsidiary, or (d) a combination of the uses described in clauses (a), (b) and (c). Pending the final application of any such Net Cash Proceeds, the Company or its Restricted Subsidiaries may temporarily reduce revolving credit borrowings Senior Debt or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this the Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses first sentence of this Section 4.09 will paragraph shall be deemed to constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10,000,000 (an "Asset Sale Offer Triggering Event"), the Company will shall be required to make an offer to all Holders of Notes and, to the extent required by the terms of any Pari Passu Indebtedness, all holders of such Pari Passu Indebtedness (an "Asset Sale Offer in accordance with Section 3.09. The Offer"), to purchase the maximum principal amount of Notes and any such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds, at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages thereon, if any, to, but excluding, to the date of purchase and will be payable purchase, in cashaccordance with the procedures set forth in the Indenture or such Pari Passu Indebtedness, as applicable. If To the extent any Excess Proceeds remain unapplied after consummation of an the Asset Sale Offer, the Company and its Restricted Subsidiaries may use those such Excess Proceeds for any purpose not otherwise prohibited by this the Indenture. If the aggregate principal amount of Notes and any such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of each such Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Albecca Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the any of its Restricted Subsidiary, as the case may be) Subsidiaries receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) liabilities of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies against further liability therefor; andwith respect to such liabilities;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are within 180 days of such Asset Sale, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset SaleEquivalents, to the extent of the cash or Cash Equivalents received in that conversion;
(C) any stock or assets of the kind referred to in clauses (2) or (4) of paragraph (b) of this Section 4.10, subject to the conditions stated therein;
(D) Indebtedness of any Restricted Subsidiary (other than subordinated Indebtedness or intercompany obligations) that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale; and
(E) any Designated Noncash Consideration received by the Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (E) that has not previously been converted to cash not to exceed the greater of $75.0 million or 2.75% of Consolidated Total Assets at the time of receipt of such Designated Noncash Consideration, with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset SaleSale (a binding commitment entered into within such 365 day period shall be treated as a permitted application of the Net Proceeds so long as such Net Proceeds shall be applied to satisfy such commitment within 180 days of the date of such commitment), the Company (or the applicable one or more of its Restricted Subsidiary, as the case may be) Subsidiaries may apply an amount equal to the amount of such Net Cash Proceeds:
(1) to repay Senior Debt (a) Indebtedness and other Obligations under a Credit Facility; or (b) other Indebtedness (other than Indebtedness contractually subordinated in accordance with right of payment to the Common Terms Agreement and this Indenture; orNotes or to any Note Guarantee) of the Company or any Restricted Subsidiary of the Company secured by a Permitted Lien;
(2) to make acquire all or substantially all of the assets of, or any capital expenditure Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or to purchase Replacement Assets becomes a Restricted Subsidiary of the Company;
(or enter into a binding agreement 3) to make such one or more capital expenditure expenditures; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business or replace the assets subject to purchase such Replacement Assets; provided that this Section 4.10;
(A5) such capital expenditure or purchase is consummated within the later with respect to Asset Sales of (i) 360 days after the receipt assets of a Restricted Subsidiary of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase Company that is not consummated within a Guarantor, to permanently reduce Indebtedness of a Restricted Subsidiary of the period set forth in subclause Company that is not a Guarantor (Aand to correspondingly reduce commitments with respect thereto), other than Indebtedness owed to the amount not so applied will be deemed to be Excess ProceedsCompany or another Subsidiary of the Company; and/ or
(6) a combination of repayment and investment permitted by the foregoing clauses (1), (2), (3), (4) and (5).
(c) Pending the final application of any Net Cash Proceeds, the Company or any of its Restricted Subsidiaries may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An If the Net Proceeds exceed the aggregate amount equal to any Net Cash Proceeds from Asset Sales within the applicable time period, such excess amount that are has not been applied or invested as provided in the preceding clauses clause (b) of this Section 4.09 Section 4.10 will constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,00050.0 million, then within ten Business Days after such datethirty days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount amount, plus accrued and unpaid interest and Additional Interestinterest, if any, to, but excludingnot including, the date of purchase purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis, based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section Section 3.09 hereof or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsSection 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section Section 3.09 hereof or this Section 4.09 Section 4.10 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Firstcash, Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any Restricted Subsidiary of its Restricted Subsidiaries the Company to, consummate an any Asset Sale unless:
(1i) the Company (or the such Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale such sale or other disposition at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and;
(2ii) at least 90not less than 75% of the consideration therefor received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of ; provided that the following will also be deemed to be cash:cash for purposes of this clause (ii):
(A) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Salesheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated subordinate in right of payment to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforliability; and
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company or such Subsidiary into cash (to the extent of the cash received in that conversion); and
(iii) the Net Cash Proceeds received by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Saleare applied:
(A) first, to the extent of the cash or Cash Equivalents received in that conversion.
(b) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable any such Restricted Subsidiary, as the case may be) may apply an amount equal , elects, or is required, to such Net Cash Proceeds:
(1) to prepay, repay Senior Debt in accordance with the Common Terms Agreement and this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated Indebtedness under the Credit Agreement within the later of (i) 360 180 days after following the receipt of the Net Cash Proceeds Pro ceeds from any Asset Sale; provided that any such repayment shall result in a permanent reduction of the related Asset Sale and (ii) 180 days after commitments thereunder in an amount equal to the date of such binding agreement and principal amount so repaid;
(B) if such capital expenditure or purchase is not consummated within second, to the period set forth extent of the balance of Net Cash Proceeds after application as described in subclause (A) above, to the extent the Company elects, to an Investment in property or other assets (including Capital Stock or other securities purchased in connection with the acquisition of Capital Stock or property of another Person) in compliance with Section 8.13; provided that
(1) such Investment occurs or the Company or any such Restricted Subsidiary enters into contractual commitments to make such Investment, subject only to customary conditions (other than the obtaining of financing), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending the final application within 180 days following receipt of any such Net Cash Proceeds; and
(2) Net Cash Proceeds so contractually committed are so applied within 270 days following the receipt of such Net Cash Proceeds; and
(C) third, if on such 180th day in the case of clauses (iii)(A) and (iii)(B)(1) (if applicable) or on such 270th day in the case of clause (iii)(B)(2) (if applicable) with respect to any Asset Sale, the Available Asset Sale Proceeds exceed $1.0 million, the Company may reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An shall apply an amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will constitute “Excess Proceeds.” If on any date, the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date, the Company will make an Available Asset Sale Offer in accordance with Section 3.09. The Proceeds to an offer to repurchase the Notes, at a purchase price in any Asset Sale Offer will be cash equal to the sum of 100% of the principal amount thereof plus Applicable Premium plus accrued and unpaid interest and Additional Interestinterest, if any, to, but excluding, to the purchase date in accordance with the terms of purchase and will be payable in cash. Section 7.09.
(b) If any an Excess Proceeds remain unapplied after consummation of an Asset Sale OfferOffer is not fully subscribed, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion retain the portion of each the Available Asset Sale Offer, Proceeds not required to repurchase Notes and the amount of Excess Available Asset Sale Proceeds will shall be reset at zeroto zero (0).
(ec) Notwithstanding In the foregoing, event of the sale, conveyance or other disposition transfer of all or substantially all of the property and assets of the Company and its Restricted SubsidiariesSubsidiaries as an entirety to a Person in a transaction permitted under Section 8.10 or Section 13.03, taken as a whole, the successor Person will be governed by deemed to have sold the provisions properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.14 and/or the provisions of Section 5.01 8.05, and not by must comply with the provisions of this Section 4.09.
(f) The Company will comply 8.05 with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder respect to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to deemed sale as if it were an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such complianceSale.
Appears in 1 contract
Sources: Purchase Agreement (American Coin Merchandising Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the such Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For Solely for purposes of this provisionclause (2), each of the following will shall be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet of Capital (or as would be shown on prior to the Company’s consolidated balance sheet as of Migration) and the date of such Asset Sale) Company (following the Migration), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; andliability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Saleof receipt, to the extent of the cash or Cash Equivalents received in that conversion; and
(C) any stock or assets of the kind referred to in clauses (2) or (4) of Section 4.10(b).
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted SubsidiarySubsidiary of the Company, as the case may be) may apply an amount equal to such Net Cash ProceedsProceeds at its option:
(1) to repay Senior Debt in accordance and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with the Common Terms Agreement and this Indenture; orrespect thereto;
(2) to make acquire all or substantially all of the assets of, or any capital expenditure Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or to purchase Replacement Assets becomes a Restricted Subsidiary of the Company;
(or enter into a binding agreement 3) to make such a capital expenditure or to purchase such Replacement Assetsexpenditure; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.or
(c4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will 4.10(b) shall constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,00015.0 million, then within ten Business Days after such datedays thereof, the Company will shall make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in accordance with Section 3.093.09 hereof to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to, but excluding, to the date of purchase purchase, and will shall be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) . The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section in Sections 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsand 4.10 hereof, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.09 Indenture by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater fair market value (as determined in good faith by a resolution of (Athe Board of Directors of the Company set forth in an Officer’s Certificate delivered to the Trustee, which determination shall be conclusive evidence of compliance with this provision) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2ii) at least 9085% of the consideration therefor received by the Company or such Restricted Subsidiary in such Asset Sale, plus all other Asset Sales since the date of this Indenture, on a cumulative basis, is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereof. For purposes Equivalents; provided that the amount of this provision, each of the following will be deemed to be cash:
any liabilities (A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Securities or any Note Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
(B) any securities, notes or other obligations received by shall be treated as cash for the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion.
(b) foregoing purposes. Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
, at its option: (1a) to repay reduce Senior Debt Debt, (b) to acquire controlling interests in accordance with the Common Terms Agreement another Oil and this Indenture; or
Gas Business, (2c) to make any capital expenditure expenditures in respect of the Company’s or its Restricted Subsidiaries’ Oil and Gas Business, (d) to purchase Replacement Assets long-term assets that are used or useful in such Oil and Gas Business or (or enter into a binding agreement e) to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) repurchase any Securities. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce Senior Debt that is revolving credit borrowings debt or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses first sentence of this Section 4.09 will paragraph shall (after the expiration of the periods specified in this paragraph) be deemed to constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10.0 million, the Company will shall make an Asset Sale Offer in accordance with Section 3.09. The to purchase the maximum principal amount of Securities and any other pari passu Indebtedness to which the Asset Sale Offer applies that may be purchased out of the Excess Proceeds, at an offer price in any Asset Sale Offer will be cash in an amount equal to to, in the case of the Securities, 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, thereon to the date of purchase and will be payable or, in cash. If the case of any Excess Proceeds remain unapplied after consummation other pari passu Indebtedness, 100% of an Asset Sale Offerthe principal amount thereof (or with respect to discount pari passu Indebtedness, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion accreted value thereof) on the date of purchase, in each Asset Sale Offercase, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply in accordance with the requirements of Rule 14e-1 under procedures set forth in Section 3.09 hereof or the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offeragreements governing pari passu Indebtedness, as applicable. To the extent that the provisions aggregate principal amount (or accreted value, as the case may be) of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with Securities and pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsExcess Proceeds, the Company will comply with may use any remaining Excess Proceeds for general corporate purposes. If the applicable securities laws sum of (i) the aggregate principal amount of Securities surrendered by Holders thereof, and regulations (ii) the aggregate principal amount or accreted value, as the case may be, of other pari passu Indebtedness surrendered by holders or lenders thereof, exceeds the amount of Excess Proceeds, the Trustee and will not the trustee or other lender representatives for the pari passu Indebtedness shall select the Securities and other pari passu Indebtedness to be deemed to have breached its obligations under Section 3.09 purchased on a pro rata basis, based on the aggregate principal amount (or this Section 4.09 by virtue accreted value, as applicable) thereof surrendered in such Asset Sale Offer. Upon completion of such complianceAsset Sale Offer, the Excess Proceeds shall be reset at zero.
Appears in 1 contract
Sources: Indenture (Range Energy I Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale (including a Sale of Designated Assets) unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and;
(2ii) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will shall be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeTerm Loans) that are assumed by the transferee of any such assets pursuant to a written customary novation or similar agreement that releases the Company or such Restricted Subsidiary from further liability therefor; andliability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion; and
(C) except in the case of a Sale of Designated Assets, any stock or assets of the kind referred to in clauses (iv) or (vi) of Section 5.10(b); and
(iii) in the case of a Sale of Designated Assets other than Canadian Gas Assets, the Company (or the Restricted Subsidiary, as the case may be) shall deposit the Net Proceeds as cash collateral in a segregated account (a "Designated Asset Sale Proceeds Account") held by the Collateral Trustee or its agent to secure the Secured Obligations; provided, that for so long as the terms of any of the Company's senior unsecured notes that were issued prior to August 10, 2000 would prevent such a pledge by a Restricted Subsidiary, the Company shall deposit with the Collateral Trustee or its agent an amount of cash equal to the Net Proceeds as cash collateral to secure the Secured Obligations, and the applicable Restricted Subsidiary shall not be obligated to do so.
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, other than a Sale of Designated Assets that are not Canadian Gas Assets, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such those Net Cash Proceeds:
(1i) to repay Senior Priority Lien Debt and/or cash collateralize letters of credit constituting Priority Lien Debt;
(ii) in accordance the case of an Asset Sale by a Restricted Subsidiary, to repay or repurchase Indebtedness of Calpine Canada Energy Finance ULC and/or Calpine Canada Energy Finance II ULC existing on the date of this Agreement;
(iii) in the case of an Asset Sale by a Restricted Subsidiary, to repay or repurchase Indebtedness of any Restricted Subsidiary and, if such Indebtedness is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(iv) to acquire all or substantially all of the Common Terms Agreement and this Indentureassets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(v) to make a capital expenditure; or
(2vi) to make any capital expenditure acquire other assets that are not classified as current assets under GAAP and that are used or to purchase Replacement Assets useful in a Permitted Business.
(or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (Ac) such capital expenditure or purchase is consummated within the later of (i) 360 Within 180 days after the receipt of the any Net Cash Proceeds from the related an Asset Sale and (ii) 180 days after the date that constitutes a Sale of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending the final application of any Net Cash ProceedsDesignated Assets other than Canadian Gas Assets, the Company (or the Restricted Subsidiary that disposed of those Designated Assets, as the case may reduce be) may apply those Net Proceeds to purchase other assets that would constitute Designated Assets or to repay Priority Lien Debt and/or cash collateralize letters of credit constituting Priority Lien Debt and, if such Priority Lien Debt is revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this IndentureIndebtedness, to correspondingly reduce commitments with respect thereto.
(d) An amount equal to any Any Net Cash Proceeds from Asset Sales (including Sales of Designated Assets) that are not applied or invested as provided in the preceding clauses of this Section 4.09 will 5.10 shall constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,00050.0 million, then within ten Business Days after or at such dateearlier point as may be elected by the Company, the Company will shall make an Asset Sale Offer offer to all Lenders and all holders of other Indebtedness that is pari passu with the Term Loans Equally and Ratably secured with the Term Loans containing provisions similar to those set forth in accordance this Agreement with Section 3.09respect to offers to prepay, purchase or redeem with the proceeds of sales of assets, including the Notes and each series of Existing Indebtedness that contains similar asset sale provisions, when applicable, to prepay the maximum principal amount of Term Loans and such other pari passu Indebtedness that may be prepaid, purchased or redeemed out of the Excess Proceeds (including each series of Existing Indebtedness that contains similar asset sale provisions). The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interestinterest, if any, to, but excluding, to the date of purchase prepayment or purchase, and will shall be payable in cashcash in accordance with the procedures set forth in Section 2.11 hereof. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this IndentureAgreement. If the aggregate principal amount of Term Loans and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Company shall select the Term Loans and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, to the sale, conveyance extent that any or other disposition of all or substantially all of the assets Net Proceeds of any Foreign Asset Sale is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Proceeds so affected shall not be required to be applied at the time provided above, but may be retained by the applicable Restricted Subsidiary so long, but only so long, as the applicable local law shall not permit repatriation to the United States. The Company shall promptly take or cause the applicable Restricted Subsidiary to promptly take all actions required by the applicable local law to permit such repatriation. Once such repatriation of any of the Company affected Net Proceeds is permitted under the applicable local law, the repatriation shall be immediately effected and its Restricted Subsidiaries, taken as a whole, will the repatriated Net Proceeds shall be governed by applied in the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of manner set forth in this Section 4.095.10 as if the Asset Sale had occurred on the date of such repatriation.
(f) The Company will comply with Notwithstanding the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder foregoing, to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions Board of Directors determines, in good faith, that repatriation of any securities laws or regulations conflict with all of the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation Net Proceeds of any such laws or regulationsForeign Asset Sale would have a material adverse tax consequence to the Company, the Company will comply with Net Proceeds so affected may be retained outside of the United States by the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of Restricted Subsidiary for so long as such compliancematerial adverse tax consequence would continue.
Appears in 1 contract
Sources: Credit Agreement (Calpine Corp)
Asset Sales. (a) The Company will notshall not be permitted to, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
: (1) the Company (or the Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the greater fair market value, evidenced by a resolution of (A) the Fair Market Value Board of Directors set forth in an Officers' Certificate delivered to the Collateral Agent, of the assets or Equity Interests Capital Stock issued or sold or otherwise disposed of of; and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received by the Company or such the Restricted Subsidiary is in the form of cashcash or Cash Equivalents; provided, Cash Equivalents or Replacement Assets or a combination thereof. For purposes however, that the amount of this provision, each of the following will be deemed to be cash:
(Aa) any liabilities, as shown on the Company’s 's or such the Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) of the Company or any the Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) Securities, that are assumed by the transferee of any such of those assets pursuant to a written customary novation agreement that releases the Company or such the Restricted Subsidiary from further liability therefor; and
and (Bb) any securities, notes or other obligations received by the Company or the Restricted Subsidiary from the transferee that are substantially concurrently converted by the Company or the Restricted Subsidiary into cash, to the extent of the cash received, shall be deemed to be cash for purposes of this provision.
(b) In the case of an Asset Sale of Collateral, the Company or the Subsidiary, as applicable, shall deposit the Net Proceeds therefor in a blocked account and such Net Proceeds will be pledged as collateral to the First Lien Collateral Agent and the Secured Parties, in each case in accordance with the First Lien Credit Facility and the Security Documents as governed by the Intercreditor Agreement.
(c) Within 60 days following the receipt of any Net Proceeds from an Asset Sale constituting Collateral (other than Securities Collateral, but including the portion of the Net Proceeds of the Asset Sale of all of the Capital Stock of a Restricted Subsidiary in an amount equal to the sum of the fair market value of Receivables of such Restricted Subsidiary from and the fair market value of Inventory of such transferee that are converted Restricted Subsidiary at the time of such Asset Sale) in an aggregate amount greater than $5.0 million, the Company shall apply all of such Net Proceeds (and not just the amount in excess of $5.0 million):
(1) first, to repay Indebtedness under the First Lien Credit Facility and to correspondingly reduce commitments thereunder (but only to the extent such commitment reduction is required by the First Lien Credit Facility in the case of revolving borrowings) and to cash collateralize letters of credit required under the First Lien Credit Facility (provided that, upon the release of any such amounts applied to cash collateralize letters of credit to the Company or any Restricted Subsidiary, such amounts shall be treated as Net Proceeds received by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after on the date of such Asset Salerelease and applied in accordance with this Section 6.11); and
(2) second, to the extent any such Net Proceeds remain after application in accordance with clause (1) above, to make an offer with such remaining Net Proceeds to purchase the maximum amount of Notes that may be purchased with such Net Proceeds at an offer price at a price equal to 101% of the cash or Cash Equivalents received in that conversionprincipal amount of the Notes.
(bd) Within 360 60 days after following the receipt of any Net Cash Proceeds from an Asset SaleSale of Securities Collateral (except as provided in the first parenthetical to clause (c) above (relating to Securities Collateral)) in an aggregate amount greater than $5.0 million, the Company shall apply all of such Net Proceeds (or and not just such amount in excess of $5.0 million) to make an offer to purchase the applicable Restricted Subsidiary, as the case maximum amount of Notes that may be) may apply be purchased with such Net Proceeds at an amount offer price at a price equal to such 101% of the principal amount of the Notes.
(e) Within 365 days following the receipt of any Net Cash Proceeds from an Asset Sale not of Collateral, the Company shall be permitted to apply the Net Proceeds:
, at its option, (1) to repay Senior Debt pari passu Indebtedness (as defined below) and to correspondingly reduce commitments thereunder with respect to repaid pari passu Indebtedness (but only to the extent such commitment reduction is required by such pari passu Indebtedness in accordance with the Common Terms Agreement and this Indenturecase of revolving borrowings); or
or (2) to make any capital expenditure acquire a controlling interest in a Permitted Business; or to purchase Replacement Assets (or enter into a binding agreement 3) to make such a capital expenditure expenditure; or (4) to purchase such Replacement Assets; provided acquire other long-term assets that (A) such capital expenditure are used or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth useful in subclause (A), the amount not so applied will be deemed to be Excess Proceedsa Permitted Business.
(cf) Pending the final application of any Net Cash ProceedsProceeds not from an Asset Sale of Collateral, the Company may shall be permitted temporarily to reduce Indebtedness under a revolving credit borrowings facility, if any, or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Agreement. Any Net Cash Proceeds from Asset Sales Sale described in clause (e) above that are not applied or invested as provided in the preceding clauses first sentence of this Section 4.09 will paragraph shall be deemed to constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10.0 million, the Company will shall be required to make an offer to all holders of Notes and all holders of other Indebtedness that ranks equally with the Notes ("pari passu Indebtedness") containing provisions similar to those set forth in this Agreement with respect to offers to purchase or redeem the Indebtedness with the proceeds of sales of assets (an "Asset Sale Offer in accordance with Section 3.09Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interestinterest, if any, to, but excluding, thereon to the date of purchase fixed for purchase, and will shall be payable in cash. .
(g) If any Excess Net Proceeds remain unapplied after consummation of an Asset Sale Offerremain after completion of the applicable offer, the Company shall, subject to the terms of this Agreement and its Restricted Subsidiaries may the Security Documents, be permitted to use those Excess any remaining Net Proceeds for any purpose not otherwise prohibited by this Agreement, including, but not limited to consummation of an asset sale offer under the Senior Subordinated Notes Indenture.
(h) If the aggregate principal amount of Notes surrendered by the holders thereof exceeds the amount of Net Proceeds, the Notes shall be purchased pursuant to Section 12.07. The procedure for offers pursuant to this Section 6.11 is set forth in Section 12.07.
(i) Upon completion of each applicable offer in respect of an Asset Sale OfferSale, the amount of Excess Net Proceeds will includable in any subsequent offer shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Sources: Purchase and Security Agreement (Brown Jordan International Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 90% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) None of the Company or any Restricted Subsidiary will sell, transfer, lease or otherwise dispose of (including pursuant to any transfer or contribution to a Restricted Subsidiary), or exclusively license, any asset, including any Equity Interest owned by it, nor will any Restricted Subsidiary issue any additional Equity Interest in such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases the Company or such a Restricted Subsidiary from further liability thereforSubsidiary, and other than directors’ qualifying shares and other nominal amounts of Equity Interests that are required to be held by other Persons under Requirements of Law) (each, a “Disposition”; andprovided that an Economic IP Transfer shall not constitute a Disposition), except:
(Ba) any securities, notes Dispositions of inventory or other obligations received by used or surplus equipment in the ordinary course of business or of cash and Permitted Investments and the granting of non-exclusive licenses and sublicenses of Intellectual Property in the ordinary course of business;
(b) Dispositions to the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion.
(b) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1) to repay Senior Debt in accordance with the Common Terms Agreement and this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) any such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending the final application of any Net Cash Proceeds, the Company may reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner Dispositions involving a Restricted Subsidiary that is not prohibited by this Indenture.
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided a Guarantor Loan Party shall be made in the preceding clauses of this Section 4.09 will constitute “Excess Proceeds.” If on any date, the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date, the Company will make an Asset Sale Offer in accordance compliance with Section 3.09. The offer price in any Asset Sale Offer will be equal 6.09; provided that no Disposition of Intellectual Property material to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance business or other disposition of all or substantially all of the assets operations of the Company and its Restricted Subsidiaries, taken as a whole, will owned by a Guarantor Loan Party may be governed by made to a Restricted Subsidiary that is not a Guarantor Loan Party pursuant to this clause (b);
(c) (i) Dispositions of Receivables in connection with the provisions compromise or collection thereof in the ordinary course of Section 4.14 and/or the provisions of Section 5.01 business and not by as part of any Permitted Receivables Facility and (ii) Dispositions of Receivables pursuant to a Permitted Receivables Facility;
(d) Dispositions of property to the provisions extent that (i) such property is exchanged for credit against the purchase price of this Section 4.09.similar replacement property or (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement property;
(e) any Permitted IP Transfer;
(f) The sales by the Company will comply or Restricted Subsidiaries of Receivables to one or more Receivables Subsidiaries in connection with any Permitted Receivables Facility; provided that (i) each such Permitted Receivables Facility is effected on terms which are considered customary for such a facility, as determined in good faith by the Company or such Restricted Subsidiary, (ii) the aggregate amount of the Seller’s Retained Interests in such Permitted Receivables Facilities does not exceed an amount at any time outstanding that is customary for similar transactions, as determined in good faith by the Company or such Restricted Subsidiary and (iii) the proceeds to each such Receivables Subsidiary from the issuance of Third Party Interests are applied substantially simultaneously with the requirements receipt thereof to the purchase from the Company or Restricted Subsidiaries of Rule 14e-1 under the Exchange Act Receivables;
(g) Scheduled Dispositions and Sale/Leaseback Transactions permitted by Section 6.07;
(h) Dispositions of assets subject to any other securities laws and regulations thereunder casualty or condemnation proceeding (including in lieu thereof);
(i) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
(j) Dispositions of assets that are not permitted by any other clause of this Section; provided that all Dispositions made in reliance on this clause shall be made for fair value and at least 75% Cash Consideration; provided, further, that any Designated Non-Cash Consideration received by the Company or any of its Restricted Subsidiaries in respect of such laws sale, transfer, lease or other disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause that is at that time outstanding, not in excess of $100,000,000 at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and regulations are applicable without giving effect to subsequent changes in value, shall be deemed to be Cash Consideration;
(k) [Reserved];
(l) Dispositions of assets related to the business of the Company and its Restricted Subsidiaries to one or more joint ventures in exchange for Equity Interests in such joint ventures; provided that the aggregate book value of all assets disposed of in reliance on this clause after the Closing Date shall not exceed the greater of (x) $200,000,000 and (y) 4.00% of Consolidated Total Assets as of the end of the most recent Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) hereof;
(m) Restricted Payments permitted by Section 6.09(a); and
(n) sales, transfers, leases, subleases, licenses, sublicenses, cross-licenses or other dispositions to or by the Company or any Restricted Subsidiary in connection with each repurchase of Notes pursuant the Separation Transactions to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict making thereof is consistent in all material respects with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such complianceForm 10.
Appears in 1 contract
Sources: Credit Agreement (NCR Corp)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale in any single transaction or series of related transactions unless:: 59
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is determined by the Company's Board of Directors and (B) evidenced by a resolution of the Board of Directors set forth in an amount equal Officers' Certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciationTrustee; and
(23) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of (i) cash, (ii) Cash Equivalents Equivalents, (iii) the majority of the Voting Stock of a Person engaged in a Permitted Business that will become on the date of acquisition thereof a Restricted Subsidiary, or Replacement Assets (iv) long-term property or assets that are used or useful in a combination thereofPermitted Business. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement or other agreement that releases the Company or such Restricted Subsidiary from further liability thereforliability; and
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset SaleEquivalents, to the extent of the cash or Cash Equivalents received in that conversion.
(b) In the case of consideration received in an Asset Sale in a form specified in Section 4.10(a)(3)(iii) or 4.10(a)(3)(iv) hereof, the Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing in Canada or the United States if the fair market value exceeds US$10.0 million.
(c) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable such Restricted Subsidiary, as the case may be) Subsidiary may apply an amount equal to such those Net Cash ProceedsProceeds at its option:
(1) to repay Senior Debt term or revolving credit Indebtedness under or cash collateralize letters of credit under a Credit Facility (other than any such Indebtedness that is subordinate in accordance right of payment to the Notes or any Subsidiary Guarantee) and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) if the Common Terms Agreement and this IndentureAsset Sale is by a Restricted Subsidiary that is not a Guarantor, to repay, redeem or repurchase any Indebtedness of that Restricted Subsidiary;
(3) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, a Person engaged in a Permitted Business;
(4) to make a capital expenditure; or
(25) to make any capital expenditure acquire other long-term assets that are used or to purchase Replacement Assets (or enter into useful in a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Permitted Business. Pending the final application of any Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses Section 4.10(c) hereof and any Net Proceeds used to cash collateralize letters of this credit which no longer cash collateralize a letter of credit and which have not otherwise been applied or invested as provided in Section 4.09 4.10(c) hereof will constitute “"Excess Proceeds.” If on ". The Company may use Excess Proceeds to make at any datetime, and when the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date, US$10.0 million the Company will make make, an offer (an "Asset Sale Offer Offer") to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase or redeem such indebtedness with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Special Interest, if any, to, but excluding, to the date fixed for the closing of purchase such offer, and will be payable in cashcash (the "Asset Sale Payment"). If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its or such Restricted Subsidiaries Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section Sections 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations4.10 hereof, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 hereunder by virtue of such complianceconflict.
Appears in 1 contract
Sources: Indenture (Ainsworth Lumber Co LTD)
Asset Sales. (ai) The A Triggering Event will occur, subject to notice and lapse of time as specified in Article V, Section 3(a)(iv), if the Company will not, and will not permit or any of its Restricted Subsidiaries to, consummate consummates an Asset Sale unless:
(1A) the The Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of and of;
(B) the fair market value is determined by the Company's Board of Directors and evidenced by a resolution of the Board of Directors set forth in an amount equal Officer's Certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciationTrustee; and
(2C) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will shall be deemed to be cash:
(A1) any liabilities, as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeMortgage Bonds in right of payment) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforliability; and
(B2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 60 days after such of the Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion.
(bii) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable such Restricted Subsidiary, as the case may be) Subsidiary may apply an amount equal to such those Net Cash ProceedsProceeds at its option:
(1A) to repay Senior Debt in accordance with senior secured Indebtedness of the Common Terms Agreement and this IndentureCompany, Transitional Funding Notes or to permanently repay Indebtedness under any of the Credit Facilities;
(B) to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business;
(C) to make a capital expenditure; or
(2D) to make any capital expenditure acquire other long-term assets that are used or to purchase Replacement Assets (or enter into useful in a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess ProceedsPermitted Business.
(ciii) Pending the final application of any Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Supplemental Indenture.
(div) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses Article V Section 6(b)(ii) ("Offer to Purchase by Application of this Section 4.09 will Excess Proceeds") above shall constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date25.0 million, the Company will shall make an Asset Sale Offer in accordance with Section 3.09. The offer price in pursuant to the provisions of Article V, Section
(v) To the extent that any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, constitutes the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, Subsidiaries taken as a whole, will such transaction shall be governed by the provisions of Section 4.14 and/or Article V, Sections 6(a) and 4(e) ("Repurchase at the provisions Option of Section 5.01 Holders--Offer to Purchase Upon a Change of Control" and "Triggering Events--Merger, Consolidation or Sale of Assets") and not by the provisions of this Article V, Section 4.096(b)(ii) or Article V, Section 7 ("Offer to Purchase by Application of Excess Proceeds").
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will Partnership shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
: (1a) the Company Shreveport Resort is Operating; (b) the Partnership (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; (c) such fair market value is determined by the Partnership's Board of Directors and evidenced by a resolution of the Board of Directors as set forth in an Officers' Certificate delivered to the Trustee; and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2d) at least 9075% of the consideration therefor received by the Company Partnership or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provisionprovision and not for purposes of the definition of "Net Proceeds" (except to the extent set forth in such definition with respect to the conversion of non-cash proceeds to cash), each of the following will shall be deemed to be cash:
: (Ax) any liabilities, liabilities (as shown on the Company’s Partnership's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Salesheet) of the Company Partnership or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Restricted Subsidiary's Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company Partnership or such Restricted Subsidiary from further liability thereforliability; and
and (By) any securities, notes Notes or other obligations received by the Company Partnership or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company Partnership or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion.
(b) ). Within 360 270 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (Partnership or the applicable Restricted Subsidiary may apply such Net Proceeds to make a capital expenditure, improve real property or acquire longterm assets that are used or useful in a line of business permitted under Section 4.14 hereof; provided, however, that the Partnership or the Restricted Subsidiary, as the case may be) may apply an amount equal , grants to the Trustee, on behalf of the Holders of the Notes, and, if the Asset Sale relates to Pari Passu Collateral, the holders of any Indebtedness secured by the Pari Passu Collateral, a first priority perfected security interest, subject to Permitted Liens, on any such property or assets acquired or constructed with the Net Cash Proceeds:
(1) Proceeds of any Asset Sale on the terms set forth herein, the intercreditor agreement entered into by the Partnership with respect to repay Senior Debt the Pari Passu Collateral in accordance with the Common Terms Agreement this Indenture and this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending the final application of any Net Cash Proceeds, the Company may reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will constitute “Excess Proceeds.” If on any date, the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date, the Company will make an Asset Sale Offer in accordance with Section 3.09. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.the
Appears in 1 contract
Sources: Indenture (HCS Ii Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unlesssell, transfer, lease or otherwise dispose of any asset, including any Equity Interest owned by it, nor will the Company permit any of it Subsidiaries to issue any additional Equity Interest in such Subsidiary, except:
(1a) sales of inventory, used, surplus or obsolete equipment and Permitted Investments in the ordinary course of business; 115
(b) sales, transfers, leases and dispositions to the Company or a Subsidiary; provided that any such sales, transfers, leases or dispositions involving a Subsidiary that is not a Subsidiary Guarantor shall be made in compliance with Section 6.08;
(c) sales or transfers of Receivables and interests therein, together with Related Security, pursuant to a Permitted Receivables Financing;
(d) dispositions of delinquent accounts receivable in connection with the collection or compromise thereof in the ordinary course of business;
(e) sales or exchanges of any item of real property and/or equipment, so long as the purpose of each such sale or exchange is to acquire (and results within 360 days before or after such sale or exchange in the acquisition of) replacement items of real property and/or equipment which are at least the functional equivalent of the item of real property and/or equipment so sold or exchanged;
(f) the Company (license in the ordinary course of business of patents, trademarks, servicemarks, trade names, technology, know-how and formulas or the Restricted Subsidiaryother rights to third Persons and to one another, so long as the case may be) receives consideration at the time of the Asset Sale equal each such license is permitted to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 90% of the consideration therefor received be assigned by the Company or any of its Subsidiaries pursuant to the Collateral Agreement (to the extent that a security interest in such Restricted Subsidiary patents, trademarks, servicemarks, trade names, technology, know-how and formulas or other rights is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Company or any of its Subsidiaries pursuant to the Collateral Agreement in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:intellectual property covered by such license;
(Ag) leases or subleases granted by the Company or any liabilities, as shown on Subsidiary to third Persons not interfering in any material respect with the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) business of the Company or any Restricted Subsidiary of its Subsidiaries;
(h) sales of other than contingent liabilities assets; provided that either (A) the fair market value of all assets sold pursuant to any single transaction (or series of related transactions) in reliance upon this clause shall not exceed $2,500,000 or (B) in the case of transactions that do not satisfy (A) above, the aggregate fair market value of all assets sold in reliance upon this clause shall not exceed $25,000,000 during any fiscal year; 116
(i) sales, transfers and liabilities other dispositions of assets that are not permitted by their terms subordinated any other clause of this Section; provided that the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this clause during any fiscal year (excluding warehouses, customer service facilities and other administrative facilities, to the Notes extent that the Net Proceeds from the sale, transfer or any Note Guarantee) that disposition thereof are assumed by the transferee of any such assets applied to prepay Term Loans pursuant to Section 2.11(c), in which case, and to such extent, such sales, transfers and dispositions shall not be subject to this limitation) shall not exceed $100,000,000;
(j) the issuance or sale by a written novation agreement that releases Subsidiary of Equity Interests to the Company or such Restricted another Subsidiary from further liability thereforin compliance with Section 6.04; and
(Bk) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion.
(b) Within 360 days after the receipt granting of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1) to repay Senior Debt in accordance with the Common Terms Agreement and this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement AssetsLien permitted by Section 6.02; provided that (A) such capital expenditure all sales, transfers, leases and other dispositions permitted hereby (other than those permitted by clause (b) or purchase is consummated within the later of (j) above) shall be made for fair value, (B) all sales, transfers and dispositions permitted by clause (h) or (i) 360 days after above shall be made for at least 80% Cash Consideration (it being understood that consideration in the receipt form of the Net assumption by the purchaser of Indebtedness secured by assets sold, or, in the case of the sale of a Subsidiary, Indebtedness of such Subsidiary, shall be ignored for purposes of determining compliance with such 80% Cash Proceeds from the related Asset Sale Consideration requirement) and (iiC) 180 days if the Company or any Subsidiary sells, transfers or otherwise disposes of Equity Interests in a Subsidiary (other than (1) any Excluded Subsidiary, (2) any Subsidiary the investments in which (including Guarantees) already constitute investments made in reliance on clause (l) of Section 6.04 prior to such sale, transfer or disposition, (3) any Subsidiary Guarantor that remains a Subsidiary Guarantor under the Collateral Agreement after giving effect to such sale, transfer or disposition, so long as it remains a Subsidiary Guarantor, and (4) any Subsidiary that was not a Subsidiary Guarantor prior to giving effect to such sale, transfer or disposition, if and so long as there is no agreement or other arrangement that prohibits, restricts or imposes any condition upon the date ability of such binding agreement and (BSubsidiary, or former Subsidiary, to pay dividends or other distributions with respect to any shares of its capital stock thereafter that did not previously exist prior to such sale, transfer or disposition, other than those imposed by law) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending the final application of any Net Cash Proceeds, a Person other than the Company may reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds another Subsidiary and such sale, 117 transfer or disposition does not include all Equity Interests in any manner that is not prohibited such Subsidiary owned by this Indenture.
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will constitute “Excess Proceeds.” If on any date, the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date, the Company will make an Asset Sale Offer in accordance with Section 3.09. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted other Subsidiaries may use those Excess Proceeds or the Company or any other Subsidiary remain liable for any purpose not otherwise prohibited by this Indenture. Upon completion Guarantee of each Asset Sale OfferIndebtedness or other obligations of such Subsidiary, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoingthen, the upon such sale, conveyance transfer or other disposition (or, if not required to do so by reason of all an exception described in clause (3) or substantially all (4) above, then upon any failure to continue to satisfy the requirements of the assets such exception), each of the Company and its Restricted SubsidiariesSubsidiaries that holds any remaining investments (whether in the form of Equity Interests, taken as a whole, will be governed by the provisions loans or advances) in such Subsidiary (or former Subsidiary) or continues to Guarantee any Indebtedness or other obligations of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
such Subsidiary (for former Subsidiary) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not shall be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue made such investments on the date of such compliancesale, transfer or disposition (or the date of the failure to continue to satisfy the relevant exception, if applicable) (in an amount equal to the fair market value of such investments on such date or the amount so Guaranteed on such date, as applicable) in reliance upon clause (l) of Section 6.04 (it being understood that such sale, transfer or disposition shall not be permitted if such investments and Guarantees would not be permitted under clause (l) of Section 6.04).
Appears in 1 contract
Sources: Credit Agreement (Fisher Scientific International Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents, Cash Equivalents or Replacement Assets or a combination thereofprovided that this requirement shall not apply to an Asset Sale in respect of non-operating mining assets. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies against further liability therefor; andliability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion;
(C) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (x) $75.0 million and (y) 5.00% of Consolidated Total Assets at the time of the receipt of such Designated Non-cash Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value); and
(D) any stock or assets of the kind referred to in clauses (3) or (5) of the next paragraph of this Section 4.10.
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1) to repay Senior Debt in accordance with the Common Terms Agreement and this Indenture; orIndebtedness that is secured by a Lien;
(2) to make any capital expenditure repay Obligations under other Indebtedness (other than Disqualified Stock or subordinated Indebtedness), other than Indebtedness owed to purchase Replacement Assets (the Company or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assetsan Affiliate of the Company; provided that the Company shall equally and ratably reduce the Obligations under the Notes as provided under Section 3.07 hereof, through open market purchases (Ato 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 Sale Offer) to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of the Notes that would otherwise be prepaid;
(3) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(4) to make a capital expenditure expenditure;
(5) to acquire other assets that are not classified as current assets under U.S. GAAP and that are used or purchase is consummated within useful in a Permitted Business; or
(6) any combination of the later foregoing; provided that, in the case of clauses (i3) 360 days after the receipt and (5) above, a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the related Asset Sale and (ii) date of such commitment so long as the Company or such Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of the date thereof; provided that if any commitment is later canceled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds from and after the date of such binding agreement and (B) if such capital expenditure cancelation or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) termination. Pending the final application of any Net Cash Proceeds, the Company (or the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(dc) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 4.10(b) hereof will constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,00050.0 million, then within ten Business Days after such datefive days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets in accordance with Section 3.093.09 hereof to purchase, prepay or redeem the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount amount, plus accrued and unpaid interest and Additional Interestinterest, if any, to, to (but excluding, ) the date of purchase purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and the applicable agent shall select such other pari passu Indebtedness to be purchased on a pro rata basis (or, in the case of Notes issued in global form, by lot or otherwise in accordance with applicable procedures of DTC), based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(fd) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and or regulations are applicable in connection with each the repurchase of Notes pursuant to an Asset Sale Offer. To Notwithstanding anything to the contrary herein, to the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 Indenture by virtue of such compliancethereof.
Appears in 1 contract
Sources: Indenture (Coeur Mining, Inc.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an make any Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater fair market value (as determined in good faith and evidenced by a resolution of (Athe Board of Directors set forth in an Officers’ Certificate delivered to the Trustee) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of Equivalents; provided that the following will be deemed to be cashamount of:
(A1) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Salesheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases any arrangement releasing the Company or such Restricted Subsidiary from further liability thereforliability; and
(B2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion), shall be deemed to be cash for purposes of this provision.
(b) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash ProceedsProceeds at its option:
(1) to repay Senior Debt in accordance permanently reduce secured or equally-ranked Indebtedness (and to correspondingly reduce commitments with the Common Terms Agreement and this Indenturerespect thereto); or
(2) to make any the making of a capital expenditure or to purchase Replacement Assets (the acquisition of a controlling interest in another business or enter into other long-term assets, in each case, in a binding agreement to make such capital expenditure line of business the same as, or to purchase such Replacement Assets; provided that (A) such capital expenditure similar or purchase is consummated within related to, the later line of (i) 360 days after business the receipt of the Net Cash Proceeds from the related Asset Sale Company and (ii) 180 days after its Subsidiaries were engaged in on the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceedsthis Indenture.
(c) Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings Indebtedness under the Replacement Credit Facility or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will subsection (b) above shall be deemed to constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10.0 million, the Company will make shall be required to commence an Asset Sale Offer in accordance with pursuant to Section 3.093.09 hereof to all Holders of Notes and all Pari Passu Holders, to purchase the maximum principal amount of Notes and Pari Passu Debt that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal Company shall comply, to 100% of the principal amount plus accrued and unpaid interest and Additional Interestextent applicable, if any, to, but excluding, the date of purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Section 14(e) of, and Rule 14e-1 under under, the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each the repurchase of the Notes pursuant to as a result of an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 Indenture by virtue of its compliance with such compliancesecurities laws or regulations. The offer price for such Asset Sale Offer shall be an amount in cash equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in Section 3.09 and the instrument or instruments governing such Pari Passu Debt, respectively. To the extent that the aggregate amount of Notes and Pari Passu Debt tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes and Pari Passu Debt surrendered by Holders and Pari Passu Holders, respectively, exceeds the amount of the Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(Aa) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as assumption of the date of such Asset Sale) Indebtedness of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee release of any such assets pursuant to a written novation agreement that releases the Company or such the Restricted Subsidiary from further all liability thereforwith respect to the 62 Indebtedness in connection with the Asset Sale; PROVIDED, HOWEVER, that the amount of the Indebtedness shall not be deemed to be cash for the purpose of the term "Net Available Cash;" and
(Bb) any securities, notes or other obligations securities received by the Company or any such Restricted Subsidiary from such the transferee that are promptly converted by the Company or such the Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion.
(b) cash. Within 360 days after the receipt of any the Net Available Cash Proceeds from an the Asset Sale, an amount equal to 100% of the Net Available Cash from the Asset Sale, subject to the following two paragraphs, shall be applied by the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1) to repay Senior Debt acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business which, in accordance with the Common Terms Agreement and this Indenture; orcase of an Asset Sale of Equity Interests or assets of a Domestic Subsidiary, must be owned by the Company or a Domestic Subsidiary;
(2) to make any a capital expenditure which, in the case of an Asset Sale of Equity Interests or to purchase Replacement Assets (or enter into assets of a binding agreement to make such Domestic Subsidiary, will be a capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from Company or a Domestic Subsidiary; or
(3) to acquire other long-term assets that are used or useful in a Permitted Business which, in the related case of an Asset Sale of Equity Interests or assets of a Domestic Subsidiary, must be owned by the Company or a Domestic Subsidiary. Notwithstanding the above, the Company and the Restricted Subsidiaries will not be required to apply any Net Available Cash according to the foregoing paragraph except to the extent that the aggregate Net Available Cash from all Asset Sales which are not applied according to the foregoing paragraph exceeds $15.0 million. Pending application of Net Available Cash under this Section 4.10, the Net Available Cash will be invested in Cash Equivalents which, in the case of an Asset Sale of Equity Interests or assets of a Domestic Subsidiary, must be held by the Joint Collateral Agent as part of the Collateral in a segregated account that includes only proceeds of Asset Sales and interest earned thereon (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period an "ASSET SALE PROCEEDS ACCOUNT"). Any Net Available Cash from Asset Sales, as set forth in subclause (A)the preceding paragraph, the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending the final application of any Net Cash Proceeds, the Company may reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 paragraph will constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,00010.0 million, then within ten Business Days after such datefive days thereof, the Company will make an Asset Sale Offer in accordance to all Holders of Notes and all holders of Parity Lien Debt that contains provisions similar to those set forth herein with Section 3.09respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other Parity Lien Debt that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Special Interest, if any, to, but excluding, to the date of purchase purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and Parity Lien Debt tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes and the Parity Lien Debt will be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) . The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase the purchase of the Notes pursuant to an Asset Sale Offerunder this Section 4.10. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations4.10, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.4.10. 63
Appears in 1 contract
Sources: Indenture (Hexcel Corp /De/)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies against further liability therefor; andliability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company transferee; and
(C) any stock or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, to the extent assets of the cash kind referred to in clauses (2) or Cash Equivalents received in that conversion(4) of the next paragraph of this Section 4.10.
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1) to repay Senior Debt in accordance Indebtedness and other Obligations under a Credit Facility that are secured by a Lien and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with the Common Terms Agreement and this Indenture; orrespect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3) to make any a capital expenditure expenditure; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or to purchase Replacement Assets useful in a Permitted Business. provided that, in the case of clauses (or enter into 2), (3) and (4) above, a binding agreement commitment entered into not later than such 365th day shall extend the period for such Investment or other payment for up to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) an additional 180 days after the end of such 365-day period so long as the Company or a Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within such 180 days (an “Acceptable Commitment”). In the event such Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith but after the end of the original 365-day period, then such Net Proceeds shall constitute Excess Proceeds on the date of such binding agreement and (B) if such capital expenditure cancellation or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) termination. Pending the final application of any Net Cash Proceeds, the Company (or the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(dc) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 4.10(b) will constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,00025.0 million, then within ten Business Days after such datefive days thereof, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets in accordance with Section 3.09. 3.09 hereof to purchase, prepay or redeem the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds.
(1) The offer price in any Asset Sale Offer will be equal to 100% of the principal amount amount, plus accrued and unpaid interest and Additional Special Interest, if any, to, but excluding, to the date of purchase purchase, prepayment or redemption, subject to the rights of Holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. .
(2) If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. .
(3) If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis, based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased).
(4) Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(fd) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Change of Control Offer or an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.09 4.10 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of and of;
(B2) the fair market value is set forth in an amount equal Officers' Certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciationTrustee; and
(23) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents cash or Replacement Assets or a combination thereofPermitted Assets. For purposes of this provision, each of the following will be deemed to be cash:
(Ai) any liabilities, as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforliability; and
(Bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion.
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) Subsidiary may apply an amount equal to such those Net Cash Proceeds:
(1) to repay Senior Debt in accordance with or prepay Indebtedness and other Obligations that is not subordinated to the Common Terms Agreement and this Indenture; orNotes;
(2) to make any capital expenditure acquire all or to purchase Replacement Assets substantially all of the assets of, or a majority of the Voting Stock of, another Oil and Gas Business;
(or enter into a binding agreement 3) to make such a capital expenditure or to purchase such Replacement Assetsexpenditure; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.or
(c4) to acquire other long-term assets that are used or useful in the Oil and Gas Business. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(dc) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 4.10(b) will constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such dateUS$10.0 million, the Company will make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is PARI PASSU with the Notes containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other PARI PASSU Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, to the date of purchase purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other PARI PASSU Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other PARI PASSU Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company's ability to make an Asset Sale Offer is currently restricted by the terms of the Credit Agreement.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(fd) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.09 Indenture by virtue of such complianceconflict.
Appears in 1 contract
Sources: Indenture (Compton Petroleum Corp)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater fair market value (as determined in good faith by the Board of (ADirectors) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2ii) at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereof. For purposes Equivalents; provided that the amount of this provision, each of the following will be deemed to be cash:
(Ax) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Salesheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a written novation an agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
and (By) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly, but in no event more than 30 days after receipt, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversionreceived), shall be deemed to be cash for purposes of this provision.
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company or such Restricted Subsidiary shall apply such Net Proceeds first to permanently reduce in full all Indebtedness outstanding under the New Credit Facility (or the applicable Restricted Subsidiary, as and to correspondingly permanently reduce commitments with respect thereto in the case may beof revolving borrowings) may apply an amount equal and second, to the extent that Net Proceeds remain following such Net Cash Proceeds:
(1) to repay Senior Debt in accordance with the Common Terms Agreement and this Indenture; or
(2) application, to make any capital expenditure or an asset sale offer pursuant to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt terms of the Net Cash Proceeds from Second Lien Notes and purchase the related Asset Sale Second Lien Notes tendered in such offer and to permanently reduce any other Senior Indebtedness if required by the terms thereof (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (Apermanently reduce commitments with respect thereto), the amount not so applied will be deemed to be Excess Proceeds.
(c) . Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings Indebtedness under the Senior Indebtedness or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal the terms of the Notes. Any Net Proceeds existing subsequent to any Net Cash Proceeds from Asset Sales that are not applied or invested the reduction in full of all Indebtedness under the New Credit Facility, the consummation of the asset sale offer pursuant to the terms of the Second Lien Notes and the reduction of other Senior Indebtedness, as provided in the preceding clauses first sentence of this Section 4.09 paragraph will be deemed to constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date25.0 million, the Company will be required to make an offer to the holders of the Notes (an “Asset Sale Offer in accordance with Section 3.09. The Offer”) to purchase the maximum principal amount of the Notes that it would be permitted to repurchase pursuant to the terms of the then outstanding Senior Indebtedness and that may be purchased out of the Excess Proceeds, at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interest, if any, to, but excludingnot including, the date of purchase and will be payable in cashpurchase. To the extent that the aggregate amount of the Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. If any the aggregate principal amount of Notes surrendered by holders thereof exceeds the amount of Excess Proceeds remain unapplied after consummation Proceeds, the Notes shall be purchased on a pro rata basis. Upon the commencement of an Asset Sale Offer, the Company will mail a notice to the holders of the Notes offering to repurchase the Notes on the date specified in such notice, which date shall be no earlier than 30 days and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indentureno later than 60 days from the date such notice is mailed, pursuant to the procedures required herein and described in such notice. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding . In the foregoing, event that an Asset Sale Offer constitutes an “issuer tender offer,” the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other all federal securities laws and regulations thereunder to the extent such laws and regulations are applicable then applicable.
(c) If the payment date in connection with each repurchase an Asset Sale Offer hereunder is on or after an interest payment record date and on or before the associated interest payment date, any accrued and unpaid interest will be paid to the person in whose name a Note is registered at the close of business on such record date, and such interest will not be payable to holders who tender Notes pursuant to an such Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Sources: Note (Hard Rock Hotel Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater of (A) the Fair Market Value (as determined by the Board of Directors) of the assets or Equity Interests issued or sold or otherwise disposed of; provided that this clause (i) shall not apply to an Asset Sale resulting solely from a foreclosure or sale by a third party upon assets or property subject to a Lien not prohibited by this Indenture;
(ii) where such Fair Market Value exceeds $25.0 million, the Company's Board of and (B) Directors' determination of such Fair Market Value is set forth in an amount equal Officers' Certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciationTrustee; and
(2iii) at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will shall be deemed to be cashCash Equivalents:
(A) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (sheet, or as would be shown on the Company’s consolidated 's or such Restricted Subsidiary's balance sheet as of on the date of such Asset Sale) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities liabilities, Indebtedness that are is by their its terms subordinated to the Notes or any Note GuaranteeGuarantee and liabilities to the extent owed to the Company or any Affiliate of the Company) that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted (including by way of any Monetization Transaction) by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion) within 120 days of such Asset Sale.
(b) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash ProceedsProceeds at its option:
(1i) to repay Senior Debt in accordance unsubordinated secured Indebtedness and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(ii) to acquire all or substantially all of the Common Terms Agreement and assets of, or a majority of the Voting Stock of, another Permitted Business (including by means of a merger, consolidation or other business combination permitted under this Indenture) to be held, commencing on the date of such acquisition, as or in a Restricted Subsidiary of the Company;
(iii) to pay for or purchase Replacement Assets; or
(2iv) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt combination of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) foregoing. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(dc) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will 4.10(b) above shall constitute “Excess Proceeds"EXCESS PROCEEDS.” If on any date, " Within 30 days after the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date25.0 million, the Company will shall make an Asset Sale Offer in accordance offer (an "ASSET SALE OFFER") to all Holders of Notes and all holders of other Indebtedness that is pari passu with Section 3.09the Notes or any Note Guarantee containing provisions similar to those set forth by this Indenture with respect to offers to purchase with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, to the date of purchase purchase, and will shall be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Notes and such other pari passu Indebtedness shall be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents. provided, Cash Equivalents or Replacement Assets or a combination thereofhowever, that any Asset Sale pursuant to an Involuntary Transfer shall not be required to satisfy the conditions set forth in clauses (1) and (2) of this Section 4.13(a). For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; andliability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion; and
(C) any stock or assets of the kind referred to in clauses (2) or (4) of Section 4.13(b).
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1) to repay Senior Debt in accordance prepay, repay, redeem or purchase Indebtedness of the Company that ranks senior or pari passu with the Common Terms Agreement Notes; provided, however, that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (1), the Company or such Restricted Subsidiary will retire such Indebtedness and this Indenture; orwill cause the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased;
(2) to make acquire all or substantially all of the assets of, or any capital expenditure Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or to purchase Replacement Assets becomes a Restricted Subsidiary of the Company;
(or enter into a binding agreement 3) to make such a capital expenditure or to purchase such Replacement Assetsexpenditure; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.or
(c4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(dc) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 4.13(b) hereof will constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10.0 million, the Company will will, within five days thereof, make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in accordance this Indenture with Section 3.09. respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds.
(d) The offer price in any Asset Sale Offer will be equal to 100% of the principal amount of, plus accrued and unpaid interest and Additional Intereston, if any, to, but excluding, any Notes purchased in the date of purchase Asset Sale Offer and will be payable in cash. .
(e) If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Company will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis or as otherwise required by Applicable Procedures (subject to adjustment so that Notes or such other pari passu Indebtedness are not purchased in part in an unauthorized denomination). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (ZaZa Energy Corp)
Asset Sales. (a) The Company MagnaChip will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company MagnaChip (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company MagnaChip or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted SubsidiaryUS LLC’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as sheet, of the date of such Asset Sale) of the Company MagnaChip or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written novation agreement customary arrangement that releases the Company MagnaChip or such Restricted Subsidiary from further liability therefor; andliability;
(B) any securities, notes or other obligations received by the Company MagnaChip or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company MagnaChip or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset SaleEquivalents, to the extent of the cash or Cash Equivalents received in that conversion; and
(C) any stock or assets of the kind referred to in Section 4.10(b)(2) or (4) hereof.
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset SaleSale other than a Sale of Collateral, the Company MagnaChip (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash ProceedsProceeds at its option:
(1) to repay Senior Priority Lien Debt in accordance and, if such Priority Lien Debt is revolving credit Indebtedness, to correspondingly reduce commitments with the Common Terms Agreement and this Indenture; orrespect thereto;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, a Person engaged in a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of US LLC;
(3) to make a capital expenditure;
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(5) any capital expenditure or to purchase Replacement Assets combination of (or enter 1) – (4) of this Section 4.10(b). In the case of clauses (2) and (4) MagnaChip will also comply with its obligations above if it enters into a binding agreement commitment to make acquire such capital expenditure assets or to purchase such Replacement Assets; Capital Stock within the required time frame above, provided that (A) such capital expenditure or purchase is binding commitment shall be subject only to customary conditions and such acquisition shall be consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds six months from the related Asset Sale and (ii) 180 days after the date of signing such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) commitment. Pending the final application of any Net Cash ProceedsProceeds pursuant to this paragraph, MagnaChip and the Company Restricted Subsidiaries may apply such Net Proceeds to temporarily reduce Indebtedness outstanding under a revolving credit borrowings facility or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) Within 365 days after the receipt of any Net Proceeds from an Asset Sale that constitutes a Sale of Collateral or from a Casualty Event, MagnaChip (or the Restricted Subsidiary that owned those assets, as the case may be) may apply those Net Proceeds to purchase other long-term assets that would constitute Collateral or to repay Priority Lien Debt and, if such Priority Lien Debt is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto. MagnaChip will also comply with its obligations set forth in the preceding sentence if it enters into a binding commitment to acquire such assets within the 365 days time frame, provided that such binding commitment shall be subject only to customary conditions and such acquisition shall be consummated within six months from the date of signing such binding commitment.
(d) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses second and third paragraphs of this Section 4.09 4.10 will constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,00010 million, then within ten Business Days after such date30 days thereof, the Company MagnaChip will make an Asset Sale Offer to all holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to, but excluding, to the date of purchase (or, in respect of such other pari passu Indebtedness of MagnaChip, such lesser price, if any, as may be provided for by the terms of such pari passu Indebtedness), and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries MagnaChip may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company MagnaChip will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.09section 4.10, or compliance MagnaChip will comply with the Asset Sale provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company MagnaChip will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.09 4.10 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (MagnaChip Semiconductor LTD (United Kingdom))
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be) receives receive consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold sold, leased, transferred, conveyed or otherwise disposed of;
(ii) the fair market value, less depreciationif greater than $2.0 million, is determined by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officer’s Certificate delivered to the Trustee; and
(2iii) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. Assets.
(b) For purposes of this provisionSection 4.12, each of the following will be deemed to be cash:
(Ai) any liabilitiesliabilities of the Company or any of its Restricted Subsidiaries, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Restricted Subsidiary’s Subsidiary Guarantee) ), that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforliability; and
(Bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after of the consummation of such Asset SaleSale (subject to ordinary settlement periods), to the extent of the cash or Cash Equivalents received in that conversion.
(bc) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such those Net Cash ProceedsProceeds at its option:
(1i) to repay Senior Debt in accordance with Debt;
(ii) to acquire all or substantially all of the Common Terms Agreement and this Indentureassets of, or a majority of the Voting Stock of, another Permitted Business; or
(2iii) to make any capital expenditure acquire other long-term assets that are used or to purchase Replacement Assets useful in a Permitted Business. In the case of each of clauses (or enter ii) and (iii) above, the entry into a binding definitive agreement to make acquire such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated assets within the later of (i) 360 365 days after the receipt of any Net Proceeds from an Asset Sale shall be treated as a permitted application of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement so long as the Company or such Restricted Subsidiary enters into such agreement with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 455 days of the date of the receipt of such Net Proceeds and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not Net Proceeds are actually so applied will be deemed to be Excess Proceeds.
(c) within such period. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 4.12(c) will constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date5.0 million, the Company will shall make an Asset Sale Offer in accordance to all Holders of Notes and all holders of other Indebtedness that is pari passu with Section 3.09the Notes containing provisions similar to those set forth herein with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional Interest, if any, to, but excluding, to the date of purchase purchase, and will shall be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased as described in Article 3 hereof. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will shall comply with the applicable securities laws and regulations and will not be deemed to have breached its the Company’s obligations under Section 3.09 or this Section 4.09 4.12 by virtue of such complianceconflict.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale (including a Sale of Designated Assets) unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and;
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will shall be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeNotes) that are assumed by the transferee of any such assets pursuant to a written customary novation or similar agreement that releases the Company or such Restricted Subsidiary from further liability therefor; andliability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion; and
(C) except in the case of a Sale of Designated Assets, any stock or assets of the kind referred to in clauses (4) or (6) of Section 4.10(b); and
(3) in the case of a Sale of Designated Assets other than Canadian Gas Assets, the Company (or the Restricted Subsidiary, as the case may be) shall deposit the Net Proceeds as cash collateral in a segregated account (a "Designated Asset Sale Proceeds Account") held by the Collateral Trustee or its agent to secure the Secured Obligations; provided, that for so long as the terms of any of the Company's senior unsecured notes that were issued prior to August 10, 2000 would prevent such a pledge by a Restricted Subsidiary, the Company shall deposit with the Collateral Trustee or its agent an amount of cash equal to the Net Proceeds as cash collateral to secure the Secured Obligations, and the applicable Restricted Subsidiary shall not be obligated to do so.
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, other than a Sale of Designated Assets that are not Canadian Gas Assets, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such those Net Cash Proceeds:
(1) to repay Senior Priority Lien Debt and/or cash collateralize letters of credit constituting Priority Lien Debt;
(2) in accordance with the Common Terms Agreement and case of an Asset Sale by a Restricted Subsidiary, to repay or repurchase Indebtedness of Calpine Canada Energy Finance ULC and/or Calpine Canada Energy Finance II ULC existing on the date of this Indenture;
(3) in the case of an Asset Sale by a Restricted Subsidiary, to repay or repurchase Indebtedness of any Restricted Subsidiary and, if such Indebtedness is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(4) to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(5) to make a capital expenditure; or
(26) to make any capital expenditure acquire other assets that are not classified as current assets under GAAP and that are used or to purchase Replacement Assets useful in a Permitted Business.
(or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (Ac) such capital expenditure or purchase is consummated within the later of (i) 360 Within 180 days after the receipt of the any Net Cash Proceeds from the related an Asset Sale and (ii) 180 days after the date that constitutes a Sale of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending the final application of any Net Cash ProceedsDesignated Assets other than Canadian Gas Assets, the Company (or the Restricted Subsidiary that disposed of those Designated Assets, as the case may reduce be) may apply those Net Proceeds to purchase other assets that would constitute Designated Assets or to repay Priority Lien Debt and/or cash collateralize letters of credit constituting Priority Lien Debt and, if such Priority Lien Debt is revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this IndentureIndebtedness, to correspondingly reduce commitments with respect thereto.
(d) An amount equal to any Any Net Cash Proceeds from Asset Sales (including Sales of Designated Assets) that are not applied or invested as provided in the preceding clauses of this Section 4.09 will 4.10 shall constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,00050.0 million, then within ten Business Days after or at such dateearlier point as may be elected by the Company, the Company will shall make an offer to all holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes and equally and ratably secured with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, including the 2007 Notes, the 2013 Notes, the Term Loans and each series of Existing Indebtedness that contains similar asset sale provisions, when applicable (an "Asset Sale Offer in accordance with Section 3.09Offer"), to purchase or redeem the maximum principal amount of notes and such other pari passu Indebtedness that may be purchased or redeemed out of the Excess Proceeds (including each series of Existing Indebtedness that contains similar asset sale provisions). The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interestinterest, if any, to, but excluding, to the date of purchase purchase, and will shall be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Company shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, to the sale, conveyance extent that any or other disposition of all or substantially all of the assets Net Proceeds of any Foreign Asset Sale is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Proceeds so affected shall not be required to be applied at the time provided above, but may be retained by the applicable Restricted Subsidiary so long, but only so long, as the applicable local law shall not permit repatriation to the United States. The Company shall promptly take or cause the applicable Restricted Subsidiary to promptly take all actions required by the applicable local law to permit such repatriation. Once such repatriation of any of the Company affected Net Proceeds is permitted under the applicable local law, the repatriation shall be immediately effected and its Restricted Subsidiaries, taken as a whole, will the repatriated Net Proceeds shall be governed by applied in the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of manner set forth in this Section 4.094.10 as if the Asset Sale had occurred on the date of such repatriation.
(f) Notwithstanding the foregoing, to the extent that the Board of Directors determines, in good faith, that repatriation of any or all of the Net Proceeds of any Foreign Asset Sale would have a material adverse tax consequence to the Company, the Net Proceeds so affected may be retained outside of the United States by the applicable Restricted Subsidiary for so long as such material adverse tax consequence would continue.
(g) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.09 Indenture by virtue of such complianceconflict.
Appears in 1 contract
Sources: Indenture (Calpine Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an to make any Asset Sale Disposition unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) Subsidiary receives consideration at the time of the Asset Sale least equal to the greater of (A) the Fair Market Value (determined as of the assets or Equity Interests issued or sold or otherwise disposed date of and (Bentering into the contractual agreement for such Asset Disposition) an amount equal to the invested cost of the shares and assets sold or otherwise disposed of, less depreciation; andsubject to such Asset Disposition;
(2) except in the case of a Permitted Asset Swap, at least 9075% of the consideration therefor from the Asset Disposition received by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents; and
(3) all Net Available Cash from the Asset Disposition is applied by the Company or Restricted Subsidiary within 365 days from the later of the date the Asset Disposition is completed or the Net Available Cash is received, as follows:
(a) to permanently reduce obligations and related commitments under (x) the Senior Credit Facility or (y) Secured Indebtedness of the Company (other than any Disqualified Stock or Subordinated Obligations) or Secured Indebtedness of a Restricted Subsidiary (other than any Disqualified Stock), in each case, other than Indebtedness owed to the Company or an Affiliate of the Company;
(b) to permanently reduce obligations under other Indebtedness of the Company (other than any Disqualified Stock or Subordinated Obligations) or Indebtedness of a Restricted Subsidiary (other than any Disqualified Stock), in each case other than Indebtedness owed to the Company or an Affiliate of the Company; provided that, except in the case of a reduction in obligations of Indebtedness of a Restricted Subsidiary, the Company shall reduce Obligations under the Notes, (i) by redeeming Notes as provided in Section 3.01, (ii) through open market purchases at prices that are at or above 100% of their principal amount or (iii) by making an offer to all Holders to purchase their Notes at 100% of their principal amount, plus accrued but unpaid interest to the date of purchase in accordance with the procedures for an Asset Disposition Offer; or
(c) to invest in Additional Assets. Any Net Available Cash Equivalents from Asset Dispositions that is not applied or Replacement Assets or a combination thereof. invested as provided in Section 4.08(a) shall be deemed to constitute “Excess Proceeds.” For the purposes of clause (2) of this provisionSection 4.08(a) and for no other purpose, each of the following will be deemed to be cash:
(A1) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Salesheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeNotes) that are assumed by the transferee of any such assets pursuant to a written novation agreement that releases and from which the Company or such and all Restricted Subsidiary from further liability therefor; andSubsidiaries have been validly released by all creditors in writing;
(B2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such the transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion.received) within 180 days following the closing of such Asset Disposition; and
(b3) Within 360 days after any Designated Noncash 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 Noncash Consideration received pursuant to this clause (3) that is at that time outstanding, not to exceed the greater of (x) $100.0 million and (y) 2.5% of Total Tangible Assets at the time of the receipt of any Net Cash Proceeds from an Asset Sale, such Designated Noncash Consideration (with the Company (or Fair Market Value of each item of Designated Noncash Consideration being measured at the applicable Restricted Subsidiary, as time received without giving effect to subsequent changes in value). In the case may beof clause (c) may apply an amount equal to such Net Cash Proceeds:
(1) to repay Senior Debt in accordance with the Common Terms Agreement and of this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into Section 4.08(a)(3), a binding agreement commitment to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt invest in Additional Assets shall be treated as a permitted application of the Net Available Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and commitment so long as the Company or such other Restricted Subsidiary enters into the commitment with the good faith expectation that the Net Available Cash will be applied to satisfy the commitment within 270 days of such commitment (B) if such capital expenditure an “Acceptable Commitment”). In the event any Acceptable Commitment is later cancelled or purchase terminated for any reason before the Net Available Cash is not consummated within applied in connection with the period set forth in subclause (A)Acceptable Commitment, the amount not so applied Company or Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) within 90 days of such cancellation or termination and with the good faith expectation that the Net Available Cash will be deemed to be applied within 180 days of such Second Commitment. If a Second Commitment is later cancelled or terminated for any reason before the Net Available Cash is applied, then the Net Available Cash shall constitute Excess Proceeds.
(c) . Pending the final application of any such Net Available Cash Proceedsin accordance with clause (a), (b) or (c) of this Section 4.08(a)(3), the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness (including under a revolving credit borrowings Senior Credit Facility) or otherwise invest the Net Available Cash Proceeds in any manner that is not prohibited by this the Indenture.
(db) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will constitute “Excess Proceeds.” If on any date, the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days 25.0 million on the 366th day after such datean Asset Disposition, the Company will make shall be required to offer (an “Asset Sale Offer in accordance with Section 3.09. The Disposition Offer”) to all Holders and, to the extent required by the terms of outstanding Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, to purchase the maximum aggregate principal amount of Notes and any such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds, at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the their principal amount amount, plus accrued and unpaid interest and Additional Interestinterest, if any, to, but excluding, to the date of purchase (subject to the right of Holders of record on a Record Date to receive interest on the relevant Interest Payment Date), in accordance with the procedures set forth in the Indenture or the agreements governing the Pari Passu Indebtedness, as applicable. To the extent that the aggregate amount of Notes and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of Pari Passu Indebtedness validly tendered and not properly withdrawn pursuant to an Asset Sale OfferDisposition Offer is less than the Excess Proceeds, the Company and its Restricted Subsidiaries may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this the Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and other Pari Passu Indebtedness surrendered by holders or lenders, collectively, exceeds the amount of Excess Proceeds, tendered Notes and Pari Passu Indebtedness shall be repaid on a pro rata basis and selection of the Notes to be repurchased shall be made by the Trustee on a pro rata basis, by lot or by such other method as the Trustee in its sole discretion shall deem to be fair and appropriate or in accordance with DTC procedures. Upon completion of each such Asset Sale Disposition Offer, the amount of Excess Proceeds will shall be reset at zero.
(ec) Notwithstanding If the foregoingAsset Disposition Purchase 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 sale, conveyance or other disposition Person in whose name a Note is registered at the close of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09business on such Record Date.
(fd) The Company will comply shall comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and or regulations thereunder to the extent such laws and regulations are applicable in connection with each the repurchase of Notes pursuant to an Asset Sale Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Sources: Fourth Supplemental Indenture (Covanta Holding Corp)
Asset Sales. (a) The Until such time as the Company will meets the Rating Condition, the Company shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1a) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(b) the fair market value is determined by the Company's Board of Directors and (B) evidenced by a resolution of the Board of Directors set forth in an amount equal Officer's Certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciationTrustee; and
(2c) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will shall be deemed to be cash:
(Ai) any liabilities, as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability thereforliability; andand 51 57
(Bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion.
(b) . Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such those Net Cash ProceedsProceeds at its option:
(1a) to repay Senior Debt in accordance and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(b) to acquire all or substantially all of the Common Terms Agreement and this Indentureassets of, or a majority of the Voting Stock of, a Permitted Business so long as such Permitted Business is or becomes a Restricted Subsidiary;
(c) to make a capital expenditure; or
(2d) to make any capital expenditure acquire or to purchase Replacement Assets (obtain other long-term assets that are used or enter into useful in a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Permitted Business. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the two preceding clauses of this Section 4.09 will paragraphs shall constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10 million, the Company will shall make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will shall be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Special Interest, if any, to, but excluding, to the date of purchase purchase, and will shall be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) . The Company will shall comply with the requirements of Rule 14e-1 l4e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.09 Indenture by virtue of such complianceconflict.
Appears in 1 contract
Sources: Indenture (GPPD Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater fair market value (evidenced by a resolution of (Athe Board of Directors set forth in an Officers' Certificate delivered to the Trustee) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2ii) at least 9085% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes ; provided that the amount of this provision, each of the following will be deemed to be cash:
(Ax) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
and (By) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion.
(b) received), shall be deemed to be cash for purposes of this Section 4.10. Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
Proceeds at its option, (1a) to repay indebtedness under a Credit Facility or Senior Debt in accordance (and to correspondingly reduce commitments with the Common Terms Agreement and this Indenture; or
respect to revolving borrowings) or (2b) to make any the acquisition of a controlling interest in another business, the making of a capital expenditure or to purchase Replacement Assets (the acquisition of other long-term assets, in each case, in the same or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within similar line of business as the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after Company was engaged in on 39 the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) this Indenture. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses first sentence of this Section 4.09 paragraph will be deemed to constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date7.5 million, the Company will be required to make an Asset Sale Offer in accordance with Section 3.09. The to all Holders of Notes to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages thereon, if any, to, but excluding, to the date of purchase and will be payable purchase, in cashaccordance with the procedures set forth in Section 3.09 hereof. If any Excess Proceeds remain unapplied after consummation To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company and its Restricted Subsidiaries may use those any remaining Excess Proceeds for any purpose not otherwise prohibited general corporate purposes. If the aggregate principal amount of Notes surrendered by this IndentureHolders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Luiginos Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1a) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(b) the fair market value is determined by (i) in the case of property valued at less than $5.0 million, the Company's principal financial or accounting officer and evidenced by an Officers' Certificate delivered to the Trustee and (Bii) in the case of property valued at $5.0 million or more, the Company's Board of Directors and evidenced by a resolution of the Board of Directors set forth in an amount equal officers' certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciationTrustee; and
(2c) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will shall be deemed to be cash:
(Ai) any liabilities, as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written customary novation or an assignment agreement that releases the Company or such Restricted Subsidiary from further liability thereforliability; and
(Bii) any securities, notes Notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion.
. Notwithstanding the foregoing, we and our Restricted Subsidiaries may engage in Asset Swaps; provided that, (b1) immediately after giving effect to such Asset Swap, we would be permitted to incur at least $1.00 of Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 and (2) our or the Restricted Subsidiary's Board of Directors, as the case may be, determines that such Asset Swap is fair to us or such Restricted Subsidiary, as the case may be, from a financial point of view and such determination is (A) in the case of Asset Swaps valued at less than $5.0 million, the Company's principal financial or accounting officer and evidenced by an Officers' Certificate delivered to the Trustee, (B) for Asset Swaps valued at $5.0 million or more but less than $10.0 million, evidenced by a resolution of such Board of Directors set forth in an Officer's Certificate delivered to the Trustee and (C) for Asset Swaps valued at $10.0 million or more, evidenced by an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing. Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such those Net Cash Proceeds:
(1a) to repay Senior Debt in accordance Indebtedness and/or other Obligations under a Credit Facility and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(b) to acquire all or substantially all of the Common Terms Agreement and this Indentureassets of, or a majority of the Voting Stock of, another Permitted Business; or
(2c) to make any capital expenditure acquire or to purchase Replacement Assets (obtain other long-term assets that are used or enter into useful in a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Permitted Business. Pending the final application of any Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will paragraph shall constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10.0 million, the Company will shall make an Asset Sale Offer to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount plus accrued and unpaid interest and Additional InterestLiquidated Damages, if any, to, but excluding, to the date of purchase purchase, and will shall be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) . The Company will shall comply with the requirements of Rule 14e-1 l4e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.09 Indenture by virtue of such complianceconflict.
Appears in 1 contract
Sources: Indenture (Hercules Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale (including a Sale of Designated Assets) unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and;
(2) at least 9075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provision, each of the following will shall be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeNotes) that are assumed by the transferee of any such assets pursuant to a written customary novation or similar agreement that releases the Company or such Restricted Subsidiary from further liability therefor; andliability;
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion; and
(C) except in the case of a Sale of Designated Assets, any stock or assets of the kind referred to in clauses (4) or (6) of Section 4.10(b); and
(3) in the case of a Sale of Designated Assets other than Canadian Gas Assets, the Company (or the Restricted Subsidiary, as the case may be) shall deposit the Net Proceeds as cash collateral in a segregated account (a "Designated Asset Sale Proceeds Account") held by the Collateral Trustee or its agent to secure the Secured Obligations; provided, that for so long as the terms of any of the Company's senior unsecured notes that were issued prior to August 10, 2000 would prevent such a pledge by a Restricted Subsidiary, the Company shall deposit with the Collateral Trustee or its agent an amount of cash equal to the Net Proceeds as cash collateral to secure the Secured Obligations, and the applicable Restricted Subsidiary shall not be obligated to do so.
(b) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, other than a Sale of Designated Assets that are not Canadian Gas Assets, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such those Net Cash Proceeds:
(1) to repay Senior Priority Lien Debt and/or cash collateralize letters of credit constituting Priority Lien Debt;
(2) in accordance the case of an Asset Sale by a Restricted Subsidiary, to repay or repurchase Indebtedness of Calpine Canada Energy Finance ULC and/or Calpine Canada Energy Finance II ULC existing as of July 16, 2003;
(3) in the case of an Asset Sale by a Restricted Subsidiary, to repay or repurchase Indebtedness of any Restricted Subsidiary and, if such Indebtedness is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(4) to acquire all or substantially all of the Common Terms Agreement and this Indentureassets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(5) to make a capital expenditure; or
(26) to make any capital expenditure acquire other assets that are not classified as current assets under GAAP and that are used or to purchase Replacement Assets useful in a Permitted Business.
(or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (Ac) such capital expenditure or purchase is consummated within the later of (i) 360 Within 180 days after the receipt of the any Net Cash Proceeds from the related an Asset Sale and (ii) 180 days after the date that constitutes a Sale of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending the final application of any Net Cash ProceedsDesignated Assets other than Canadian Gas Assets, the Company (or the Restricted Subsidiary that disposed of those Designated Assets, as the case may reduce be) may apply those Net Proceeds to purchase other assets that would constitute Designated Assets or to repay Priority Lien Debt and/or cash collateralize letters of credit constituting Priority Lien Debt and, if such Priority Lien Debt is revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this IndentureIndebtedness, to correspondingly reduce commitments with respect thereto.
(d) An amount equal to any Any Net Cash Proceeds from Asset Sales (including Sales of Designated Assets) that are not applied or invested as provided in the preceding clauses of this Section 4.09 will 4.10 shall constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,00050.0 million, then within ten Business Days after or at such dateearlier point as may be elected by the Company, the Company will shall make an offer to all holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes and equally and ratably secured with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase with the proceeds of sales of assets, including the Second Priority Senior Secured Notes, the Term Loans and each series of Existing Indebtedness that contains similar asset sale provisions, when applicable (an "Asset Sale Offer in accordance with Section 3.09Offer"), to purchase the maximum principal amount of notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds (including each series of Existing Indebtedness that contains similar asset sale provisions). The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interestinterest, if any, to, but excluding, to the date of purchase purchase, and will shall be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Company shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, to the sale, conveyance extent that any or other disposition of all or substantially all of the assets Net Proceeds of any Foreign Asset Sale is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Proceeds so affected shall not be required to be applied at the time provided above, but may be retained by the applicable Restricted Subsidiary so long, but only so long, as the applicable local law shall not permit repatriation to the United States. The Company shall promptly take or cause the applicable Restricted Subsidiary to promptly take all actions required by the applicable local law to permit such repatriation. Once such repatriation of any of the Company affected Net Proceeds is permitted under the applicable local law, the repatriation shall be immediately effected and its Restricted Subsidiaries, taken as a whole, will the repatriated Net Proceeds shall be governed by applied in the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of manner set forth in this Section 4.094.10 as if the Asset Sale had occurred on the date of such repatriation.
(f) Notwithstanding the foregoing, to the extent that the Board of Directors determines, in good faith, that repatriation of any or all of the Net Proceeds of any Foreign Asset Sale would have a material adverse tax consequence to the Company, the Net Proceeds so affected may be retained outside of the United States by the applicable Restricted Subsidiary for so long as such material adverse tax consequence would continue.
(g) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.09 Indenture by virtue of such complianceconflict.
Appears in 1 contract
Sources: Indenture (Calpine Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, engage in or consummate an Asset Sale unless:
unless (1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost fair market value of the assets sold or otherwise disposed ofof (as determined by the Board of Directors in good faith, less depreciation; and
whose determination shall be conclusive evidence thereof and shall be evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) and (2ii) at least 9075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents other than in the case where the Company or Replacement Assets or such Restricted Subsidiary is undertaking a combination thereof. For purposes Permitted Asset Swap; provided that the amount of this provision, each of the following will be deemed to be cash:
(Ax) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant to a written novation customary agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
and (By) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 15 days by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash or Cash Equivalents received in that conversion.
(breceived) shall be deemed to be cash for purposes of this provision. Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company or its Restricted Subsidiaries may apply such Net Proceeds, at its option, (a) to permanently reduce Senior Debt, or (b) to the investment in, or the applicable making of a capital expenditure or the acquisition of, other property or assets in each case used or useable in a Permitted Business, or Capital Stock of any Person primarily engaged in a Permitted Business if, as a result of the investment in or acquisition by the Company or any Restricted Subsidiary thereof, such Person becomes a Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds:
(1) to repay Senior Debt in accordance with the Common Terms Agreement and this Indenture; or
(2) to make any capital expenditure or to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) a combination of the uses described in clauses (a) and (b). Pending the final application of any such Net Cash Proceeds, the Company or its Restricted Subsidiaries may temporarily reduce revolving credit borrowings Senior Debt or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales Sales, that are not applied or invested as provided in the preceding clauses first sentence of this Section 4.09 paragraph within the 360-day period after receipt of such Net Proceeds will be deemed to constitute “"Excess Proceeds.” If on any date, " When the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10.0 million (an "Asset Sale Offering Triggering Event"), the Company will be required to make an offer to all Holders of Notes and, to the extent required by the terms of any Pari Passu Indebtedness to all holders of such Pari Passu Indebtedness (an "Asset Sale Offer in accordance with Section 3.09. The Offer") to purchase the maximum principal amount of Notes and any such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds, at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Additional InterestLiquidated Damages thereon, if any, to, but excluding, to the date of purchase purchase, in accordance with the procedures set forth in Section 3.09 hereof or such Pari Passu Indebtedness, as applicable. To the extent that the aggregate principal amount of Notes and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of such Pari Passu Indebtedness tendered pursuant to an Asset Sale OfferOffer is less than the Excess Proceeds, the Company and or its Restricted Subsidiaries may use those any remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes and any purpose not otherwise prohibited such Pari Passu Indebtedness surrendered by this Indentureholders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of each such Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Laralev Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, consummate an any Asset Sale unless:
(1i) the Company (or the such Restricted Subsidiary, as the case may be) Subsidiary receives consideration at the time of the such Asset Sale at least equal to the greater of (A) the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal Property subject to the invested cost of the assets sold or otherwise disposed of, less depreciation; andsuch Asset Sale;
(2ii) at least 9075% of the consideration therefor received by paid to the Company or such Restricted Subsidiary in connection with such Asset Sale is in the form of cashcash or Cash Equivalents; provided, Cash Equivalents or Replacement Assets or a combination thereof. For purposes however, that the amount of this provision, each of the following will be deemed to be cash:
(A1) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Salesheet) of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeSubsidiary Guaranty) that are assumed by the transferee of any such assets Property pursuant to a written customary novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor; and
and (B2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 30 days by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Sale, (to the extent of the cash received) shall be deemed to be cash for the purposes of this provision;
(iii) no Default or Cash Equivalents received in Event of Default would occur as a result of such Asset Sale; and
(iv) the Company delivers an Officers' Certificate to the Trustee certifying that conversionsuch Asset Sale complies with the preceding clauses (a)(i) through (iii).
(b) Within 360 days after the receipt of The Net Available Cash (or any Net Cash Proceeds portion thereof) from an Asset Sale, Sales may be applied by the Company (or the applicable a Restricted Subsidiary, as to the case may be) may apply an amount equal to extent the Company or such Net Cash Proceeds:Restricted Subsidiary elects (or is required by the terms of any Debt):
(1i) to repay Repay Senior Debt of the Company or any Subsidiary Guarantor (excluding, in accordance with any such case, any Debt owed to the Common Terms Agreement and this IndentureCompany or an Affiliate of the Company); or
(2ii) to make any capital expenditure or to purchase Replacement reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (Aanother Restricted Subsidiary), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending Any Net Available Cash from an Asset Sale not applied in accordance with the final application preceding paragraph within 360 days from the date of the receipt of such Net Available Cash or that is not segregated from the general funds of the Company for investment in identified Additional Assets in respect of a project that shall have been commenced, and for which binding contractual commitments have been entered into, prior to the end of such 360-day period and that shall not have been completed or abandoned shall constitute "Excess Proceeds;" provided, however, that any Net Available Cash applied to complete a Senior Notes Prepayment Offer which is commenced within 365 days from the date of the receipt of such Net Available Cash shall be deemed to have been applied within such 360-day period; provided, further, that the amount of any Net Available Cash that ceases to be so segregated as contemplated above and any Net Available Cash that is segregated in respect of a project that is abandoned or completed shall also constitute "Excess Proceeds" at the time any such Net Available Cash ceases to be so segregated or at the time the relevant project is so abandoned or completed, as applicable; provided further, however, that the Company may reduce revolving credit borrowings or otherwise invest the amount of any Net Available Cash Proceeds in any manner that continues to be segregated for investment and that is not prohibited by this Indentureactually reinvested within 24 months from the date of the receipt of such Net Available Cash shall also constitute "Excess Proceeds."
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will constitute “Excess Proceeds.” If on any date, When the aggregate amount of Excess Proceeds exceeds $100,000,0005.0 million (taking into account income earned on such Excess Proceeds, then within ten Business Days after such dateif any), the Company will be required to make an Asset Sale Offer offer to repurchase (the "Prepayment Offer") the Notes, which offer shall be in accordance with Section 3.09. The offer the amount of the Allocable Excess Proceeds (rounded to the nearest $1,000), on a pro rata basis according to principal amount, at a purchase price in any Asset Sale Offer will be equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional interest, including Special Interest, if any, toto the purchase date (subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date), but excluding, in accordance with the date procedures (including prorating in the event of oversubscription) set forth in this Indenture. To the extent that any portion of the amount of Net Available Cash remains after compliance with the preceding sentence and provided that all Holders of Notes have been given the opportunity to tender their Notes for purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offeraccordance with this Indenture, the Company and its or such Restricted Subsidiaries Subsidiary may use those Excess Proceeds such remaining amount for any purpose not otherwise prohibited permitted by this Indenture. Upon completion of each Asset Sale Offer, and the amount of Excess Proceeds will be reset at to zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration (including by way of relief from, or by any person assuming responsibilities for, any liabilities, contingent or otherwise) at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) the fair market value is determined by (A) an executive officer of the General Partner if the value is less than $15,000,000 and evidenced by an Officers’ Certificate delivered to the Trustee, or (B) the General Partner’s Board of Directors if the value is $15,000,000 or more and evidenced by a resolution of the Board of Directors set forth in an amount equal Officers’ Certificate delivered to the invested cost of the assets sold or otherwise disposed of, less depreciation; andTrustee;
(2iii) at least 9075% of the fair market value of all forms of consideration therefor received by the Company or such and its Restricted Subsidiary Subsidiaries in the Asset Sale is in the form of cash, cash or Cash Equivalents or Replacement Assets or a combination thereofEquivalents. For purposes of this provisionSection 4.10, each of the following will shall be deemed to be cash:
(A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a written novation an agreement that releases the Company or such Restricted Subsidiary from further liability thereforliability; and
(B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are are, within 120 days after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 90 days after such Asset Salecash, to the extent of the cash or Cash Equivalents received in that conversion; and
(iv) if such Asset Sale involves the transfer of Collateral:
(A) such Asset Sale complies with the applicable provisions of the Collateral Documents; and
(B) all consideration received in such Asset Sale shall be expressly made subject to the Lien under the Collateral Documents, which Lien shall be a First Priority Lien with respect to the First Lien Obligations (including the Credit Agreement) of the Issuers and the Guarantors and a Second Priority Lien with respect to the Notes.
(b) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company or any such Restricted Subsidiary may apply (or the applicable Restricted Subsidiaryenter into a definitive agreement for such application within such 360-day period, as the case may be) may apply an amount equal to provided that such Net Cash Proceeds:
Proceeds are in fact applied within 180 days after the end of such 360-day period) those Net Proceeds at its option to any combination of the following: (1) to repay Senior Debt in accordance with debt under the Common Terms Credit Agreement and this Indentureor other First Lien Obligations that are Pari Passu Indebtedness; or
(2) to make any capital expenditure acquire all or to purchase Replacement Assets (substantially all of the properties or enter into assets of a binding agreement to make such capital expenditure or to purchase such Replacement AssetsPerson primarily engaged in a Permitted Business; provided that the Person acquiring such assets is, or simultaneously with such acquisition becomes a Restricted Subsidiary; provided, that, to the extent that such Net Proceeds represent proceeds of Collateral, the Company or the applicable Restricted Subsidiary promptly grants to the Collateral Agent a security interest on such assets pursuant to the Collateral Documents to the extent required under this Indenture and the Collateral Documents; (A3) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt to acquire a majority of the Voting Stock of a Person primarily engaged in a Permitted Business so long as such Person becomes a Restricted Subsidiary immediately upon such acquisition; provided, that, to the extent that such Net Cash Proceeds from the related Asset Sale and (ii) 180 days after the date represent proceeds of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A)Collateral, the amount not so applied will be deemed Company or the applicable Restricted Subsidiary promptly grants to be Excess Proceedsthe Collateral Agent a security interest on such assets pursuant to the Collateral Documents to the extent required under this Indenture and the Collateral Documents; (4) to make capital expenditures; provided, that, to the extent that such Net Proceeds represent proceeds of Collateral, the Company or the applicable Restricted Subsidiary promptly grants to the Collateral Agent a security interest on such assets pursuant to the Collateral Documents to the extent required under this Indenture and the Collateral Documents; or (5) to acquire other long-term assets that are used or useful in a Permitted Business; provided, that, to the extent that such Net Proceeds represent proceeds of Collateral, the Company or the applicable Restricted Subsidiary promptly grants to the Collateral Agent a security interest on such assets pursuant to the Collateral Documents to the extent required under this Indenture and the Collateral Documents.
(c) Pending the final application of any Net Cash Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 will clause (b) above shall constitute “Excess Proceeds.” If on any date”
(d) On the 361st day after the Asset Sale (or the 541st day if a definitive agreement has been entered into to apply such proceeds within 180 days of the end of such 360-day period and such funds have not been applied within such period), if the aggregate amount of Excess Proceeds then exceeds $100,000,000, then within ten Business Days after such date15,000,000, the Company will shall make an Asset Sale Offer (i) to the extent the proceeds of the Asset Sale do not constitute Collateral, to all Holders of Notes, and all holders of other Pari Passu Indebtedness containing provisions similar to those set forth in accordance this Indenture with Section 3.09respect to offers to purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount of Notes and such other Pari Passu Indebtedness that may be purchased out of the Excess Proceeds and (ii) to the extent the proceeds of the Asset Sale constitute Collateral, first to all holders of Second Lien Obligations, and second, to the extent any amounts remain, to holders of other Pari Passu Indebtedness that contain provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem, using the proceeds of the Asset Sale, the maximum amount of Second Lien Obligations and such other Pari Passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interestinterest, if any, to, but excludingnot including, the date of purchase settlement, subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the date of settlement, and will shall be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other Pari Passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero.
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will shall comply with the requirements of Rule 14e-1 14e-l under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 or this Section 4.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulationsIndenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.09 Indenture by virtue of such complianceconflict.
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Asset Sales. (a) The Company will not, and will not permit any of its Restricted Material Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted a Material Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the greater of (A) the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(2) at least 9075% of the aggregate consideration therefor received in respect of such Asset Sale by the Company or such Restricted Subsidiary and its Material Subsidiaries and all other Asset Sales since the Issue Date is in the form of cash, cash or Cash Equivalents or Replacement Assets (or a combination thereof. For ) but excluding cash held in escrow; provided that, for purposes of this provision, each of the following will be deemed to be cash:
(Aa) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) sheet, of the Company or any Restricted Material Subsidiary (other than contingent liabilities liabilities, Subordinated Debt and liabilities that are by their terms subordinated to the Notes or any Note Guaranteeobligations in respect of preferred stock) that are assumed by the transferee of any such assets or Equity Interests pursuant to customary agreements (or other legal documentation with the same effect) that includes a written novation agreement that releases full release or indemnity of the Company or such Restricted Material Subsidiary from further any and all liability therefor; and;
(Bb) any securities, notes or other obligations received by the Company or any such Restricted Material Subsidiary from such transferee that are converted by the Company or such Restricted Material Subsidiary into cash or Cash Equivalents within 90 days after such the date of the Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion.; and
(bc) with respect to any Asset Sale of oil and gas properties by the Company or a Material Subsidiary in which the Company or such Material Subsidiary retains an interest, any agreement by the transferee (or any Affiliate thereof) to pay all or a portion of the costs and expenses related to the exploration, development, completion or production of such properties and activities related thereto. Notwithstanding the foregoing, the 75% limitation referred to in clause (3) above shall be deemed satisfied with respect to any Asset Sale in which the Cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with clause (3) above on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Within 360 365 days after the receipt of any Net Cash Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds from an Asset Sale, Hedge Monetization or Casualty Event, the Company (or the applicable Restricted Material Subsidiary, as the case may be) may apply an amount equal to such Net Cash Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds, at its option:
(1) to repay Senior repay, prepay, redeem or purchase (x) Debt and other obligations under the Bank Facility incurred under clause (1) of the definition of Permitted Debt or any Second Lien Notes (provided that any such repayment, prepayment, redemption or purchase of the Second Lien Notes shall be made first, in accordance with respect of “New Money Notes” under and as defined in the Common Terms Agreement Second Lien Notes Indenture on a pro rata basis based on the aggregate principal amount of all outstanding “New Money Notes” thereunder, and second, to in respect of “Exchange Notes” under and defined in the Second Lien Notes Indenture on a pro rata basis based on the aggregate principal amount of all outstanding “Exchange Notes” thereunder; provided that, any such action shall be accompanied by a reduction of the related commitments or facility amount, or (y) any Debt and other obligations that were secured by the assets sold in such Asset Sale, subject to such Hedge Monetization and/or subject to such Casualty Event, in each case, on a senior basis to the Notes to the extent expressly permitted under this Indenture; or;
(2) to make any capital expenditure or to purchase Replacement Assets invest in Additional Assets; or
(or enter into a binding agreement 3) to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt expenditures in respect of the Net Cash Proceeds from the related Asset Sale Oil and (ii) 180 days after the date Gas Business; However, pending application or investment of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), the amount not so applied will be deemed to be Excess Proceeds.
(c) Pending the final application of any Net Cash Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds as provided in clauses (1) through (3) of the Company immediately preceding paragraph, such Net Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds may be applied to temporarily reduce revolving credit borrowings indebtedness or otherwise invest the Net Cash Proceeds invested in any manner that is not prohibited by this Indenture.
(d) An amount equal to any . Any Net Cash Proceeds, Hedge Receipts and/or Net Insurance/Condemnation Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.09 (1) through (3) above will constitute “Excess Proceeds.” If on any date, Within ten (10) Business Days after the aggregate amount of Excess Proceeds exceeds $100,000,000, then within ten Business Days after such date10.0 million, the Company will make an Asset Sale Offer in accordance with Section 3.09offer (a “Specified Offer”) to all Holders of Notes to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Specified Offer will be equal to 100% of the principal amount plus accrued and unpaid interest and Additional Interestinterest, if any, to, to but excluding, excluding the date of purchase purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale a Specified Offer, the Company and its Restricted Subsidiaries or any Material Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered exceeds the amount of Excess Proceeds, the Notes shall be repurchased a pro rata basis based on the aggregate principal amount of Notes tendered by the holders thereof. Upon completion of each Asset Sale Specified Offer, the amount of Excess Proceeds will be reset at zero.
(e) . Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the properties or assets of the Company and its Restricted Material Subsidiaries, taken as a whole, will be governed by the provisions Section 801 of Section 4.14 and/or the provisions of Section 5.01 this Indenture and not by the provisions of this Section 4.09.
(f) 1014. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale a Specified Offer. To the extent that the provisions of any such securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.091014, or compliance with the provisions of Section 3.09 or this Section 4.09 1014 would constitute a violation of any such securities laws or regulations, the Company will comply with the applicable securities laws and or regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.09 1014 by virtue of such compliance. In the event that, pursuant to this Section 1014, the Company is required to commence a Specified Offer, it will follow the procedures specified below:
(1) The Specified Offer shall be made to all Holders. The Specified Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three (3) Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes. Payment for any Notes so purchased will be made in the same manner as principal payments are made at Stated Maturity or upon redemption.
(2) If the Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Specified Offer.
(3) Upon the commencement of a Specified Offer, the Company will send a notice to the Trustee and each of the Holders. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Specified Offer. The notice, which will govern the terms of the Specified Offer, will state:
(a) that the Specified Offer is being made pursuant to this Section 1014 and the length of time the Specified Offer will remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment will continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Specified Offer will cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to a Specified Offer may elect to have Notes purchased in minimum denominations of U.S.$1,000 and integral multiples of U.S.$1,000 in excess of U.S.$1,000 only;
(f) that Holders electing to have Notes purchased pursuant to any Specified Offer will be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book entry transfer, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Purchase Date;
(g) that Holders will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered by Holders thereof exceeds the Offer Amount, the Company will repurchase the Notes on a pro rata basis based on the principal amount of Notes (with such adjustments as may be deemed appropriate by the Company so that only Notes in minimum denominations of U.S.$1,000, or an integral multiple of U.S.$1,000 in excess of U.S.$1,000, will be purchased); and
(i) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to U.S.$1,000 in principal amount or an integral multiple of U.S.$1,000 in excess of U.S.$1,000.
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