Limitation on Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless: (1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; (2) such fair market value is determined by the Board of Directors of the Company; and (3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following shall be deemed to be cash: (a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability; (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion); (c) Productive Assets; and (d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option: (1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company); (2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or (3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to this
Appears in 5 contracts
Sources: Seventh Supplemental Indenture (Cco Holdings LLC), Indenture (Cco Holdings LLC), Fifth Supplemental Indenture (Cco Holdings Capital Corp)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such the applicable Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or that are sold or otherwise disposed of;
(2) such fair market value is , as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company; and
(32) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such the applicable Restricted Subsidiary from the Asset Sale is in the form of cashcash or Cash Equivalents; provided that in the case of the sale of all of the IMC Salt Business Unit and ▇▇▇▇▇, in the alternative, up to 35% of the consideration received by the Company or the applicable Restricted Subsidiary in the sale may be in the form of Capital Stock of the Person that will hold the IMC Salt Business Unit and ▇▇▇▇▇ following the Asset Sale if the remainder is in the form of cash or Cash Equivalents Equivalents; provided, further, that the requirement in this clause (2) shall not apply in the case of the sale of all or readily marketable securitiesany part of the IMC Chemicals Business Unit. For the purposes of this Section 4.11clause (2) above, each the amount of the following shall be deemed to be cash:
(a) any liabilities (as Indebtedness shown on the Company’s or such Restricted Subsidiary’s most recent applicable balance sheet) sheet of the Company or any the applicable Restricted Subsidiary thereof (Subsidiary, other than contingent liabilities and liabilities Indebtedness that are is by their its terms subordinated to the Notes) Notes or any Note Guarantee, that are is assumed by the transferee of any such assets pursuant will be deemed to a customary novation agreement that releases be cash. Additionally, the Company or such Restricted Subsidiary, as the case may be, must apply the Net Cash Proceeds from each Asset Sale to:
(1) repay Indebtedness under the Credit Agreement;
(2) repay (including by purchase) secured obligations;
(3) repay (including by purchase) any Indebtedness of any Restricted Subsidiary from further liability;that is not a Guarantor; and/or
(4) make an investment in or expenditures for assets (including Capital Stock of any entity) (a) that replace the assets that were the subject of the Asset Sale or (b) that will be used in the business of the Company and its Subsidiaries as existing on the Issue Date or in businesses reasonably related thereto (“Replacement Assets”). Any Net Cash Proceeds that the Company does not apply, or decides not to apply, in accordance with the preceding paragraph will constitute a “Net Proceeds Offer Amount.” The 366th day after an Asset Sale or any earlier date on which the Board of Directors of the Company determines not to apply the Net Cash Proceeds in accordance with the preceding paragraph is a “Net Proceeds Offer Trigger Date.” When the aggregate Net Proceeds Offer Amount is equal to or exceeds $25.0 million, the Company must make an offer to purchase (the “Net Proceeds Offer”) on a date that is not less than 30 days nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from
(a) all Holders of Notes and
(b) all holders of other Indebtedness (“Other Indebtedness”) that (x) is not, by its terms, expressly subordinated in right of payment to the Notes and (y) contains provisions requiring that an offer to purchase such Other Indebtedness be made with the proceeds from the Asset Sale, on a pro rata basis, the maximum principal amount of Notes and Other Indebtedness that may be purchased with the Net Proceeds Offer Amount. The offer price for Notes in any securitiesNet Proceeds Offer will be equal to 100% of the principal amount of the Notes to be purchased, notes or other obligations plus any accrued and unpaid interest on such Notes, if any, to the date of purchase. The following events will be deemed to constitute an Asset Sale and the Net Cash Proceeds from such Asset Sale must be applied in accordance with this Section 4.10:
(1) in the event any non-cash consideration received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cashCompany in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), Cash Equivalents or readily marketable securities received in that conversion);or
(c2) Productive Assets; and
(d) any Designated Noncash Consideration received by in the Issuers or any event of the transfer of substantially all, but not all, of the assets of the Company and its Restricted Subsidiary Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, and as a result thereof the Company is no longer an obligor on the Notes, the successor corporation shall be deemed to have sold the assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10, and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were an Asset Sale having an aggregate fair market valueSale. In addition, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the fair market value of each item such assets of Designated Noncash Consideration being measured at the time received and without giving effect Company or its Restricted Subsidiaries deemed to subsequent changes be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10. Notwithstanding the provisions described in value. Within 450 days after the receipt of any Net Proceeds from an Asset Saleimmediately preceding paragraphs, the Company or a and its Restricted Subsidiary thereof Subsidiaries may apply consummate an amount equal Asset Sale without complying with such provisions to the Applicable Percentage extent that (a) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets and (b) such Asset Sale is for fair market value. Any cash consideration that does not constitute Replacement Assets that is received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted under this paragraph will constitute Net Cash Proceeds and will be subject to the provisions described in the preceding paragraphs. The Company shall mail a notice of a Net Proceeds (Offer by first-class mail, postage prepaid, to the “Applicable Proceeds”) at its optionrecord Holders as shown on the register of Holders within 30 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, containing all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to repay or otherwise retire debt under this Section 4.10, that all Notes tendered will be accepted for payment; provided, however, that if the Credit Facilities or any other aggregate principal amount of Notes and Other Indebtedness tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of the Restricted Subsidiaries of Net Proceeds Offer, the Company shall select on a pro rata basis, the Notes and Other Indebtedness to be purchased (other with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, as applicable, or multiples thereof shall be purchased) and that the Net Proceeds Offer shall remain open for a period of 20 business days or such longer periods as may be required by law;
(2) the offer price (including the amount of accrued interest) and the Net Proceeds Offer date of payment (“Net Proceeds Offer Payment Date”) (which shall be not less than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date and which shall be at least five business days after the Trustee receives notice thereof from the Company);
(23) that any Note not tendered will continue to repay or otherwise retire unsecured Indebtedness accrue interest;
(4) that, unless the Company defaults in making payment therefor, any Note accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a Net Proceeds Offer will be required to surrender such Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the business day prior to the Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the second business day prior to the Net Proceeds Offer Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of the Notes such Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) that Holders whose Notes are purchased only in part will be issued new Notes in a principal amount equal to the unpurchased portion of the Note surrendered; provided, however, that each Note purchased and each new Note issued shall be in an original principal amount of $1,000 or integral multiples thereof. On or before the Net Proceeds Offer Payment Date, the Company shall (a) accept for payment Notes or portions thereof (in integral multiples of $1,000) validly tendered pursuant to the Net Proceeds Offer, (b) deposit with the Paying Agent in accordance with Section 2.15 U.S. Dollars sufficient to pay the purchase price plus accrued and unpaid interest, if any, of all Notes to be purchased and (c) deliver to the Trustee Notes so accepted together with an Officers’ Certificate stating the Notes or portions thereof being purchased by the Company. Upon receipt by the Paying Agent of the monies specified in clause (b) above and a copy of the Officers’ Certificate specified in clause (c) above, the Paying Agent shall promptly mail to the Holders of Notes so long as a pro rata offer is made accepted payment in an amount equal to the purchase price plus accrued and unpaid interest, if any, out of the funds deposited with the Paying Agent in accordance with the procedures set forth preceding sentence. The Trustee shall promptly authenticate and mail to such Holders new Notes equal in principal amount to any unpurchased portion of the next paragraph Notes surrendered. Upon the payment of the purchase price for the Notes accepted for purchase, the Trustee shall return the Notes purchased to all holders the Company for cancellation. Any monies remaining after the purchase of other unsecured Indebtedness issued Notes pursuant to a Net Proceeds Offer shall be returned within three business days by the Company; or
(3) Trustee to invest in Productive Assets; provided that the Company except with respect to monies owed as obligations to the Trustee pursuant to Article Seven. For purposes of this Section 4.10, the Trustee shall act as the Paying Agent. To the extent the amount of Notes tendered pursuant to any such Net Proceeds Offer is less than the amount of Net Cash Proceeds which subject to such Net Proceeds Offer, the Company may use any remaining portion of such Net Cash Proceeds not required to fund the repurchase of tendered Notes for general corporate purposes and such Net Proceeds Offer Amount shall be reset to zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days regulations conflict with the provisions of this Section 4.10, the Company shall comply with the applicable Asset Sale may securities laws and regulations and shall not be invested in Productive Assets within two years deemed to have breached its obligations under the provisions of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thisthis Section 4.10 by virtue thereof.
Appears in 5 contracts
Sources: Supplemental Indenture (Mosaic Crop Nutrition, LLC), Supplemental Indenture (Mosaic Crop Nutrition, LLC), Supplemental Indenture (Mosaic Co)
Limitation on Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such a Restricted Subsidiary of the Company, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Company's Board of Directors and evidenced by a resolution of such Board of Directors set forth in an Officers' Certificate delivered to the CompanyTrustee; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any Restricted Subsidiary thereof of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 60 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to this
Appears in 5 contracts
Sources: Indenture (Charter Communications Inc /Mo/), Indenture (Charter Communications Inc /Mo/), Indenture (Charter Communications Inc /Mo/)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such the Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;; and
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 7585% of the consideration from such received in the Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.115.10, each of the following shall 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) , of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities Indebtedness that are (x) by their terms subordinated to the NotesNotes or any Note Guarantee, (y) unsecured, or (z) secured by a Lien on the assets or rights that are the subject of the Asset Sale, which Lien is junior in priority to the Liens securing the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(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 recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(c) Productive Assets; and
(d3) any Designated Noncash Consideration received by stock or assets of the Issuers kind referred to in clauses (2) 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 (4) of the next paragraph of this clause (d) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in valuecovenant. Within 450 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or a the applicable Restricted Subsidiary thereof Subsidiary, as the case may be) may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt Indebtedness and other Obligations under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company)Working Capital Facility and to correspondingly permanently reduce commitments with respect thereto;
(2) to repay acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes (x) a Restricted Subsidiary of the Company and (y) a Guarantor;
(3) to make capital expenditures in a Permitted Business (other than Equity Interests, Indebtedness or current assets); or
(4) to acquire other assets (other than Equity Interests or Indebtedness) that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise retire unsecured invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum amount of Notes and such other pari passu Indebtedness that may be purchased out of the Company, so long as a pro rata offer is made Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the next paragraph Notes in any Asset Sale Offer will be equal to all holders 100% of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such aggregate principal amount of Net the Notes, plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds which remain after consummation of an Asset Sale Offer, the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Notes and the amount of any other pari passu Indebtedness tendered into such Applicable 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 pursuant to thiswill be reset at zero.
Appears in 5 contracts
Sources: Indenture (FiberTower CORP), Indenture (FiberTower CORP), Indenture (FiberTower CORP)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an any Asset Sale Sale, unless:
(1i) no Default shall have occurred and be continuing or would occur as a result of such Asset Sale;
(ii) the consideration received by the Company or such Restricted Subsidiary receives consideration at Subsidiary, as the time of such Asset Sale case may be, is at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3iii) at least 75% of the consideration from such received consists of cash, Temporary Cash Investments or Replacement Assets; provided that, in the case of an Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by Sale in which the Company or such Restricted Subsidiary is receives Replacement Assets involving aggregate consideration in excess of US$35.0 million (or the form Dollar Equivalent thereof), the Company shall deliver to the Trustee an opinion as to the fairness to the Company or such Restricted Subsidiary of cashsuch Asset Sale from a financial point of view issued by an accounting, Cash Equivalents appraisal or readily marketable securitiesinvestment banking firm of recognized international standing. For purposes of this Section 4.11provision, each of the following shall will be deemed to be cash:
(aA) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet) , of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes, any Subsidiary Guarantee or any JV Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary assumption, assignment, novation or similar agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly, but in any event within 30 days of closing, converted by the recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);.
(cb) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or a the applicable Restricted Subsidiary thereof Subsidiary, as the case may be) may apply an amount equal to the Applicable Percentage of such Net Cash Proceeds (the “Applicable Proceeds”) at its optionto:
(1i) to permanently repay or otherwise retire debt under the Credit Facilities or any other Senior Indebtedness of the Company or any Restricted Subsidiaries of the Company Subsidiary (and, if such Senior Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto) in each case owing to a Person other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of Subsidiary; or
(ii) acquire properties and assets that replace the applicable Asset Sale may be invested in Productive Assets within two years properties and assets that were the subject of such Asset Sale or in properties or assets that will be used in the Permitted Business (including any shares of Capital Stock in a Person holding such properties or assets that is primarily engaged in a Permitted Business) (“Replacement Assets”).
(c) Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in clauses (i) and (ii) of Section 4.14(b) will constitute “Excess Proceeds”. Excess Proceeds of less than US$10.0 million (or the Dollar Equivalent thereof) will be carried forward and accumulated. When accumulated Excess Proceeds equals to or exceeds US$10.0 million (or the Dollar Equivalent thereof), within 10 days thereof, the Company must make an Offer to Purchase Notes having a principal amount equal to:
(i) accumulated Excess Proceeds, multiplied by;
(ii) a fraction (x) the numerator of which is equal to the outstanding principal amount of the Notes and (y) the denominator of which is equal to the outstanding principal amount of the Notes and all pari passu Indebtedness similarly required to be repaid, redeemed or tendered for in connection with the Asset Sale; provided that , rounded down to the nearest US$1. The offer price in any Offer to Purchase will be equal to 100% of the principal amount plus accrued and unpaid interest to the date of purchase, and will be payable in cash.
(1d) pending If any Excess Proceeds remain after consummation of an Offer to Purchase, the final application Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and any other pari passu Indebtedness tendered into (or required to be prepaid or redeemed in connection with) such Offer to Purchase exceeds the amount of Excess Proceeds, the Notes and such other pari passu Indebtedness will be purchased on a pro rata basis based on the principal amount of Notes and any such Applicable other pari passu Indebtedness tendered (or required to be prepaid or redeemed). Upon completion of each Offer to Purchase, the amount of Excess Proceeds pursuant to thiswill be reset at zero.
Appears in 5 contracts
Sources: Indenture (Yin Jia Investments LTD), Indenture (Yin Jia Investments LTD), Indenture (Yin Jia Investments LTD)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such the Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;; and
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 7585% of the consideration from such received in the Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.115.10, each of the following shall 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) , of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities Indebtedness that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to (A) a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability or (B) an assignment agreement that includes, in lieu of such a release, the agreement of the transferee or its parent company to indemnify and hold harmless the Company or such Subsidiary from and against any loss, liability or cost in respect of such assumed liability;
(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 recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(c) Productive Assets; and
(d3) any Designated Noncash Consideration received by stock or assets of the Issuers kind referred to in clauses (2) 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 (4) of the next paragraph of this clause (d) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in valuecovenant. Within 450 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or a the applicable Restricted Subsidiary thereof Subsidiary, as the case may be) may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt Indebtedness and other Obligations under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company)Working Capital Facility and to correspondingly reduce commitments with respect thereto;
(2) to repay 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 and a Guarantor;
(3) to make capital expenditures in a Permitted Business; 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. Pending the final application of any Net Proceeds, the Company may temporarily reduce borrowings under the Working Capital Facility or otherwise retire unsecured invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $5.0 million, the Company will, within five (5) days thereof, make an Asset Sale Offer to all Holders and all holders of other senior secured Indebtedness that is pari passu in right of payment and as to security interests with the Notes with respect to the assets that are the subject of such Asset Sale containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum amount of Notes and such other pari passu Indebtedness that may be purchased out of the Company, so long as a pro rata offer is made Excess Proceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price for the next paragraph Notes in any Asset Sale Offer will be equal to all holders 100% of other unsecured Indebtedness issued by the Company; or
(3) Aggregate Accreted Principal Amount of the Notes, plus accrued and unpaid interest to invest in Productive Assets; provided that the date of purchase. If any such amount Excess Proceeds remain after consummation of Net Proceeds which an Asset Sale Offer, the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the Aggregate Accreted Principal Amount of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Notes and the amount of any other pari passu Indebtedness tendered into such Applicable 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 pursuant to thiswill be reset at zero.
Appears in 4 contracts
Sources: Indenture (FiberTower CORP), Indenture (FiberTower CORP), Indenture (FiberTower CORP)
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an any Asset Sale Sale, unless:
(1i) no Default shall have occurred and be continuing or would occur as a result of such Asset Sale;
(ii) the consideration received by the Company or such Restricted Subsidiary receives consideration at Subsidiary, as the time of such Asset Sale case may be, is at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3iii) at least 75% of the consideration from such received consists of cash, Temporary Cash Investments or Replacement Assets; provided that in the case of an Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by Sale in which the Company or such Restricted Subsidiary is receives Replacement Assets involving aggregate consideration in excess of US$10.0 million (or the form Dollar Equivalent thereof), the Company shall deliver to the Trustee an opinion as to the fairness to the Company or such Restricted Subsidiary of cashsuch Asset Sale from a financial point of view issued by an accounting, Cash Equivalents appraisal or readily marketable securitiesinvestment banking firm of recognized international standing. For purposes of this Section 4.11provision, each of the following shall 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) , of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes, any Subsidiary Guarantee or any JV Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary assumption, assignment, novation or similar agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(b2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly, but in any event within 30 days of closing, converted by the recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);.
(cb) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or a the applicable Restricted Subsidiary thereof Subsidiary, as the case may be) may apply an amount equal to the Applicable Percentage of such Net Cash Proceeds (the “Applicable Proceeds”) at its optionto:
(1i) to permanently repay or otherwise retire debt under the Credit Facilities or any other Senior Indebtedness of the Restricted Subsidiaries of the Company (other than or a Subsidiary Guarantor or any Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
that is not a Subsidiary Guarantor (2and, if such Senior Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce permanently commitments with respect thereto) in each case owing to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of Person other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which than the Company or a Restricted Subsidiary thereof has committed Subsidiary; or
(ii) acquire Replacement Assets.
(c) Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in clauses (i) and (ii) of Section 4.13(b) will constitute “Excess Proceeds.” Excess Proceeds of less than US$10.0 million (or the Dollar Equivalent thereof) will be carried forward and accumulated. When accumulated Excess Proceeds exceed US$10.0 million (or the Dollar Equivalent thereof), within 10 days thereof, the Company must make an Offer to invest in Productive Assets within 450 days Purchase Notes having a principal amount equal to:
(i) accumulated Excess Proceeds, multiplied by
(ii) a fraction (x) the numerator of which is equal to the outstanding principal amount of the applicable Asset Sale may Notes and (y) the denominator of which is equal to the outstanding principal amount of the Notes and all pari passu Indebtedness similarly required to be invested repaid, redeemed or tendered for in Productive Assets within two years of such connection with the Asset Sale; provided that , rounded down to the nearest US$1,000.
(1d) pending The offer price in any Offer to Purchase will be equal to 100% of the final application principal amount plus accrued and unpaid interest to the date of purchase, and will be payable in cash.
(e) If any Excess Proceeds remain after consummation of an Offer to Purchase, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes (and any other pari passu Indebtedness) tendered into (or required to be prepaid or redeemed in connection with) such Offer to Purchase exceeds the amount of any Excess Proceeds, the Trustee will select the Notes (and such Applicable other pari passu Indebtedness) to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered (or required to be prepaid or redeemed). Upon completion of each Offer to Purchase, the amount of Excess Proceeds pursuant to thiswill be reset at zero.
Appears in 4 contracts
Sources: Indenture (Xinyuan Real Estate Co., Ltd.), Indenture (Xinyuan Real Estate Co., Ltd.), Indenture (Xinyuan Real Estate Co., Ltd.)
Limitation on Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 7575.0% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion 500.0 million and (ii) 3.0% of Total Assets, 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. Within 450 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(32) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 365 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; . The amount of any Net Proceeds received from Asset Sales that are not applied or invested as provided in the preceding paragraph shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company shall make an Asset Sale Offer to all Holders and all holders of other Indebtedness that (1) pending is of equal priority with the final application Notes containing provisions requiring offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other Indebtedness of equal priority that may be purchased out of the Excess Proceeds, which amount includes the entire amount of the Net Proceeds. The offer price in any Asset Sale Offer shall be payable in cash and equal to 100.0% of the principal amount of the subject Notes plus accrued and unpaid interest, if any, to the date of purchase. If the aggregate principal amount of Notes and such other Indebtedness of equal priority tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other Indebtedness of equal priority to be purchased on a pro rata basis. If any Excess Proceeds remain after consummation of an Asset Sale Offer, then the Company or any Restricted Subsidiary thereof may use such Applicable remaining Excess Proceeds for any purpose not otherwise prohibited by this Supplemental Indenture. Upon completion of any Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. In the event that the Company shall be required to commence an offer to Holders to purchase Notes pursuant to thisthis Section 4.11, it shall follow the procedures specified in Sections 3.01 through 3.09.
Appears in 4 contracts
Sources: Eighth Supplemental Indenture (Charter Communications, Inc. /Mo/), Sixth Supplemental Indenture (Charter Communications, Inc. /Mo/), Seventh Supplemental Indenture (Charter Communications, Inc. /Mo/)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such the Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such the fair market value is determined by the Company’s Board of Directors and evidenced by a resolution of the CompanyBoard of Directors set forth in an Officers’ Certificate delivered to the Trustee; and
(3) at least 75% of the consideration from such received in the Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or readily marketable securitiesEquivalents. For purposes of this clause (3) of Section 4.114.10 only, each of the following shall will be deemed to be cashcash or Cash Equivalents:
(a) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) , of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or such Subsidiary into cash, Cash Equivalents or readily marketable securities cash within 180 days after of the receipt thereof (thereof, to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);; and
(c) Productive Assets; and
(d) with respect to any Designated Noncash Consideration received by Asset Sale of oil and natural gas properties where the Issuers Company or any such Restricted Subsidiary retains an interest in such Asset Sale having property, the aggregate costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant Affiliate thereof) agrees to this clause (d) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in valuepay. Within 450 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a any such Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such those Net Proceeds (the “Applicable Proceeds”) at its optionoption to any combination of the following:
(1I) to repay prepay, repay, redeem or otherwise retire debt under the Credit Facilities or repurchase any other Indebtedness of the Restricted Subsidiaries of the Company or a Guarantor (other than intercompany Indebtedness, Capital Stock or Indebtedness represented solely by a guarantee that is subordinated to the Notes or the Subsidiary Guarantees) or any Indebtedness of a Restricted Subsidiary of the Companythat is not a Guarantor (other than intercompany Indebtedness);
(2II) to repay 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;
(III) to acquire a majority of the Voting Stock of one or more other Persons primarily engaged in the Oil and Gas Business;
(IV) to make one or more capital expenditures; or
(V) to acquire other long-term assets that are used or useful in the Oil and Gas Business. Pending the final application of any Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise retire unsecured Indebtedness of invest the Net Proceeds in any manner that is not prohibited by the Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute “Excess Proceeds.” On the 361st day after the Asset Sale (or, at the Company’s option, so long as a pro rata offer is made in accordance with any earlier date), if the procedures set forth in aggregate amount of Excess Proceeds then exceeds $50.0 million, the next paragraph Company will make an Asset Sale Offer to all Holders of Notes, and to all holders of other unsecured Pari Passu Indebtedness issued then outstanding, to purchase the maximum principal amount of Notes and such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds, pursuant to the terms in Section 3.04 hereof and this Section 4.10. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest, if any, to the Settlement Date, 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 Settlement Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by the Company; or
(3) to invest in Productive Assets; provided that any such Indenture. If the aggregate principal amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest Notes and Pari Passu Indebtedness tendered in Productive Assets within 450 days of the applicable such Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such Pari Passu Indebtedness 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 $2,000 or any such Applicable integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to thisan Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such compliance.
Appears in 4 contracts
Sources: First Supplemental Indenture (Whiting Petroleum Corp), Second Supplemental Indenture (Whiting Petroleum Corp), Third Supplemental Indenture (Whiting Petroleum Corp)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such the applicable Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or that are sold or otherwise disposed of;
(2) such fair market value is , as reasonably determined in good faith by the Company’s Board of Directors or a senior officer of the Company; and
(32) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such the applicable Restricted Subsidiary from the Asset Sale is in the form of cashcash or Cash Equivalents; provided that in the case of the sale of all of the IMC Salt Business Unit, in the alternative, up to 35% of the consideration received by the Company or the applicable Restricted Subsidiary in the sale may be in the form of Capital Stock of the Person that will hold the IMC Salt Business Unit and ▇▇▇▇▇ following the Asset Sale if the remainder is in the form of cash or Cash Equivalents Equivalents; provided, further, that the requirement in this clause (2) shall not apply in the case of the sale of all or readily marketable securitiesany part of the IMC Chemicals Business Unit. For the purposes of this Section 4.11clause (2) above, each the amount of the following shall be deemed to be cash:
(a) any liabilities (as Indebtedness shown on the Company’s or such Restricted Subsidiary’s most recent applicable balance sheet) sheet of the Company or any the applicable Restricted Subsidiary thereof (Subsidiary, other than contingent liabilities and liabilities Indebtedness that are is by their its terms subordinated to the Notes) Notes or any Note Guarantee, that are is assumed by the transferee of any such assets pursuant will be deemed to a customary novation agreement that releases be cash. Additionally, the Company or such Restricted Subsidiary, as the case may be, must apply the Net Cash Proceeds from each Asset Sale to:
(1) repay Indebtedness under the Credit Agreement;
(2) repay (including by purchase) secured obligations;
(3) repay (including by purchase) any Indebtedness of any Restricted Subsidiary from further liability;that is not a Guarantor; and/or
(4) make an investment in or expenditures for assets (including Capital Stock of any entity) (a) that replace the assets that were the subject of the Asset Sale or (b) that will be used in the business of the Company and its Subsidiaries as existing on May 17, 2001 or in businesses reasonably related thereto (“Replacement Assets”). Any Net Cash Proceeds that the Company does not apply, or decides not to apply, in accordance with the preceding paragraph will constitute a “Net Proceeds Offer Amount.” The 366th day after an Asset Sale or any earlier date on which the Board of Directors of the Company determines not to apply the Net Cash Proceeds in accordance with the preceding paragraph is a “Net Proceeds Offer Trigger Date.” When the aggregate Net Proceeds Offer Amount is equal to or exceeds $25.0 million, the Company must make an offer to purchase (the “Net Proceeds Offer”) on a date that is not less than 30 days nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from
(a) all Holders of Notes and
(b) all holders of other Indebtedness (“Other Indebtedness”) that (x) is not, by its terms, expressly subordinated in right of payment to the Notes and (y) contains provisions requiring that an offer to purchase such Other Indebtedness be made with the proceeds from the Asset Sale, on a pro rata basis, the maximum principal amount of Notes and Other Indebtedness that may be purchased with the Net Proceeds Offer Amount. The offer price for Notes in any securitiesNet Proceeds Offer will be equal to 100% of the principal amount of the Notes to be purchased, notes or other obligations plus any accrued and unpaid interest on such Notes, if any, to the date of purchase. The following events will be deemed to constitute an Asset Sale and the Net Cash Proceeds from such Asset Sale must be applied in accordance with this Section 4.10:
(1) in the event any non-cash consideration received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cashCompany in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), Cash Equivalents or readily marketable securities received in that conversion);or
(c2) Productive Assets; and
(d) any Designated Noncash Consideration received by in the Issuers or any event of the transfer of substantially all, but not all, of the assets of the Company and its Restricted Subsidiary Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, and as a result thereof the Company is no longer an obligor on the Notes, the successor corporation shall be deemed to have sold the assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10, and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were an Asset Sale having an aggregate fair market valueSale. In addition, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the fair market value of each item such assets of Designated Noncash Consideration being measured at the time received and without giving effect Company or its Restricted Subsidiaries deemed to subsequent changes be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10. Notwithstanding the provisions described in value. Within 450 days after the receipt of any Net Proceeds from an Asset Saleimmediately preceding paragraphs, the Company or a and its Restricted Subsidiary thereof Subsidiaries may apply consummate an amount equal Asset Sale without complying with such provisions to the Applicable Percentage extent that (a) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets and (b) such Asset Sale is for fair market value. Any cash consideration that does not constitute Replacement Assets that is received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted under this paragraph will constitute Net Cash Proceeds and will be subject to the provisions described in the preceding paragraphs. The Company shall mail a notice of a Net Proceeds (Offer by first-class mail, postage prepaid, to the “Applicable Proceeds”) at its optionrecord Holders as shown on the register of Holders within 30 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, containing all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to repay or otherwise retire debt under this Section 4.10, that all Notes tendered will be accepted for payment; provided, however, that if the Credit Facilities or any other aggregate principal amount of Notes and Other Indebtedness tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of the Restricted Subsidiaries of Net Proceeds Offer, the Company shall select on a pro rata basis, the Notes and Other Indebtedness to be purchased (other with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, as applicable, or multiples thereof shall be purchased) and that the Net Proceeds Offer shall remain open for a period of 20 business days or such longer periods as may be required by law;
(2) the offer price (including the amount of accrued interest) and the Net Proceeds Offer date of payment (“Net Proceeds Offer Payment Date”) (which shall be not less than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date and which shall be at least five business days after the Trustee receives notice thereof from the Company);
(23) that any Note not tendered will continue to repay or otherwise retire unsecured Indebtedness accrue interest;
(4) that, unless the Company defaults in making payment therefor, any Note accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a Net Proceeds Offer will be required to surrender such Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the business day prior to the Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the second business day prior to the Net Proceeds Offer Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of the Notes such Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) that Holders whose Notes are purchased only in part will be issued new Notes in a principal amount equal to the unpurchased portion of the Note surrendered; provided, however, that each Note purchased and each new Note issued shall be in an original principal amount of $1,000 or integral multiples thereof. On or before the Net Proceeds Offer Payment Date, the Company shall (a) accept for payment Notes or portions thereof (in integral multiples of $1,000) validly tendered pursuant to the Net Proceeds Offer, (b) deposit with the Paying Agent in accordance with Section 2.15 U.S. Dollars sufficient to pay the purchase price plus accrued and unpaid interest, if any, of all Notes to be purchased and (c) deliver to the Trustee Notes so accepted together with an Officers’ Certificate stating the Notes or portions thereof being purchased by the Company. Upon receipt by the Paying Agent of the monies specified in clause (b) above and a copy of the Officers’ Certificate specified in clause (c) above, the Paying Agent shall promptly mail to the Holders of Notes so long as a pro rata offer is made accepted payment in an amount equal to the purchase price plus accrued and unpaid interest, if any, out of the funds deposited with the Paying Agent in accordance with the procedures set forth preceding sentence. The Trustee shall promptly authenticate and mail to such Holders new Notes equal in principal amount to any unpurchased portion of the next paragraph Notes surrendered. Upon the payment of the purchase price for the Notes accepted for purchase, the Trustee shall return the Notes purchased to all holders the Company for cancellation. Any monies remaining after the purchase of other unsecured Indebtedness issued Notes pursuant to a Net Proceeds Offer shall be returned within three business days by the Company; or
(3) Trustee to invest in Productive Assets; provided that the Company except with respect to monies owed as obligations to the Trustee pursuant to Article VII. For purposes of this Section 4.10, the Trustee shall act as the Paying Agent. To the extent the amount of Notes tendered pursuant to any such Net Proceeds Offer is less than the amount of Net Cash Proceeds which subject to such Net Proceeds Offer, the Company may use any remaining portion of such Net Cash Proceeds not required to fund the repurchase of tendered Notes for general corporate purposes and such Net Proceeds Offer Amount shall be reset to zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days regulations conflict with the provisions of this Section 4.10, the Company shall comply with the applicable Asset Sale may securities laws and regulations and shall not be invested in Productive Assets within two years deemed to have breached its obligations under the provisions of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thisthis Section 4.10 by virtue thereof.
Appears in 4 contracts
Sources: Supplemental Indenture (Mosaic Co), Supplemental Indenture (Mosaic Crop Nutrition, LLC), Supplemental Indenture
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such a Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(32) at least 75% of the aggregate consideration from such received by the Company and its Restricted Subsidiaries in the Asset Sale, together with Sale and all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief fromJune 4, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary 2015 is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11provision, each of the following shall will be deemed to be cash:
(a) any liabilities (liabilities, as shown on the Company’s or such any Restricted Subsidiary’s most recent balance sheet) , of the Company or any such Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cashare, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(c) Productive Assetsany Capital Stock or assets of the kind referred to in clauses (II), (IV) or (V) of the following paragraph; and
(d) any Designated Noncash Non-cash Consideration received by the Issuers Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate a fair market value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (d) that is at that time outstanding), not to exceed the greater of (i) $4.5 billion and (ii) 3.05.0% of Total Assets, the Company’s Consolidated Net Tangible Assets (with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value). Within 450 360 days after the receipt of any Net Proceeds from an Asset SaleSale (or within 180 days after such 360-day period in the event the Company or any Restricted Subsidiary enters into a binding commitment with respect to such application within such 360-day period), the Company or a any Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such those Net Proceeds (the “Applicable Proceeds”) at its optionoption to any combination of the following:
(1I) to repay repay, redeem, repurchase or otherwise retire debt under the Credit Facilities Senior Debt, including Notes;
(II) to acquire all or any other Indebtedness substantially all of the Restricted Subsidiaries properties or assets of the Company a Person primarily engaged in a Permitted Business;
(other than Indebtedness represented solely by III) to acquire any Capital Stock of a guarantee Person primarily engaged in a Permitted Business if, after giving effect to any such acquisition of Capital Stock, such Person is or becomes a Restricted Subsidiary of the Company);
(2IV) to repay make capital expenditures; or
(V) to acquire other long-term assets that are used or otherwise retire unsecured Indebtedness useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company or any Restricted Subsidiary may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute “Excess Proceeds.” On the 361st day after the Asset Sale (or, at the Company’s option, so long any earlier date or, as a pro rata offer is made in accordance with provided above, on the procedures set forth in 541st day after the next paragraph Asset Sale), if the aggregate amount of Excess Proceeds then exceeds $20.0 million, the Company will make an Asset Sale Offer to all Holders of Notes, and to all holders of other unsecured Pari Passu Indebtedness issued by then outstanding, to purchase the Company; or
(3) to invest in Productive Assets; provided that any such maximum principal amount of Net Notes and such 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, if any, to the Settlement Date, 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 Settlement Date, and will be payable in cash. If any Excess Proceeds which remain after consummation of an Asset Sale Offer, the Company or a any Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of the applicable Notes and Pari Passu Indebtedness tendered into such Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Offer exceeds the amount of Excess Proceeds, the respective aggregate amount of Notes and such Pari Passu Indebtedness to be purchased shall be determined on a pro rata basis, and the Trustee shall select the Notes to be purchased in such aggregate amount on a pro rata basis as set forth in Section 3.09(h) of the Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any such Applicable Proceeds other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to thisan Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the provisions of this Section 4.10 by virtue of such conflict.
Appears in 3 contracts
Sources: Indenture (Global Partners Lp), Indenture (Global Partners Lp), Indenture (Global Partners Lp)
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) The Company (or the Company or such Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3ii) at least 75% of the aggregate consideration from received in respect of such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Sale by the Company or such Restricted Subsidiary Subsidiary, is in the form of cash, cash or Cash Equivalents or readily marketable securitiesAdditional Assets. For purposes of this Section 4.11provision, each of the following shall be deemed to be cash:
(aA) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet) , of the Company or any Restricted Subsidiary thereof (other than contingent liabilities liabilities, Subordinated Debt and liabilities that are by their terms subordinated to the Notesany obligations in respect of preferred stock) that are assumed by the transferee of any such assets or Equity Interests pursuant to a customary novation agreement (or other legal documentation with the same effect) that releases includes a full release of the Company or such Restricted Subsidiary from further liability;any and all liability therefor; and
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities cash within 180 90 days after receipt thereof (the date of the Asset Sale, to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);.
(b) Notwithstanding clause (a) of Section 4.12, the 75% limitation referred to 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 the foregoing provision on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation.
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 365 days after the receipt of any Net Proceeds from an Asset SaleSale or, if the Company has entered into a binding commitment or commitments with respect to any of the actions described in clauses (ii) or (iii) below, within the later of (x) 365 days after the receipt of any Net Proceeds from an Asset Sale or (y) 120 days after the entering into of such commitment or commitments, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(i) to permanently repay Senior Debt;
(ii) to invest in Additional Assets; or
(iii) to make capital expenditures in respect of a Related Business of the Company or any of its Restricted Subsidiaries. However, pending application or investment of such Net Proceeds as provided in clauses (i) through (iii), such Net Proceeds may be applied to temporarily reduce revolving credit Indebtedness. An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in clauses (i) through (iii) above shall constitute “Excess Proceeds.”
(d) Within ten Business Days after the aggregate amount of Excess Proceeds exceeds $20.0 million, the Company shall make an offer (an “Asset Sale Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes 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. The offer price in any Asset Sale Offer shall be equal to 100% of the principal amount plus accrued and unpaid interest, if any, to the date of purchase, and shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or a any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Company shall use the Excess Proceeds to purchase the Notes and such other pari passu Indebtedness on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(e) Notwithstanding clauses (a), (b), (c) and (d) of this Section 4.12, the sale, conveyance or other disposition of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries, taken as a whole, shall be governed by Section 4.11 and/or Section 5.01 and not by the provisions of Section 4.12.
(f) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Indenture, or compliance with the Asset Sales provisions of this Indenture would constitute a violation of any such laws or regulations, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sales provisions of this Indenture by virtue of such compliance.
(g) In the event that, pursuant to this Section 4.12, the Company is required to commence an Asset Sale Offer, it will follow the procedures specified below:
(i) The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.
(ii) If the Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
(iii) Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to the Trustee and each of the Holders. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(A) that the Asset Sale Offer is being made pursuant to this Section 4.12 and the length of time the Asset Sale Offer will remain open;
(B) the Offer Amount, the purchase price and the Purchase Date;
(C) that any Note not tendered or accepted for payment will continue to accrue interest;
(D) that, unless the Company defaults in paying the purchase price of the Notes tendered by each Holder and accepted by each Holder and accepted by the Company for purchase, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;
(E) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000 only;
(F) that Holders electing to have any Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Purchase Date;
(G) that Holders will be entitled to withdraw their election if the Company, the depositary or the Paying Agent, as the case may be, receives, not later than the close of business on the second Business Day preceding the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have such Note purchased;
(H) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders thereof exceeds the Offer Amount, the Company will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may apply be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess of $2,000, will be purchased); and
(I) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer), which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess of $2,000.
(iv) On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, based on the principal amount of Notes and such other pari passu Indebtedness surrendered, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.12. The Company, the depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness purchase price of the Restricted Subsidiaries of Notes tendered by such Holder and accepted by the Company (other than Indebtedness represented solely by for purchase, and the Company will promptly issue a guarantee of a Restricted Subsidiary of new Note, and the Company);
(2) to repay or otherwise retire unsecured Indebtedness of Trustee, upon written request from the Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued accepted shall be promptly mailed or delivered by the Company; or
(3) Company to invest in Productive Assets; provided that any such amount of Net Proceeds which the Holder thereof. The Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days will publicly announce the results of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending Offer on the final application of the amount of any such Applicable Proceeds pursuant to thisPurchase Date.
Appears in 3 contracts
Sources: Indenture (Kodiak Oil & Gas Corp), Indenture (Kodiak Oil & Gas Corp), Indenture (Kodiak Oil & Gas Corp)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) The Company (or the Company or such Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(32) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) therefore received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securitiesReplacement Assets. For purposes of this Section 4.11clause, each of the following shall be deemed to be cashCash Equivalents:
(aA) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities liabilities, Indebtedness that are is by their its terms subordinated to the NotesNotes or any Note Guarantee 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 and with respect to a customary novation agreement that releases which the Company or such and its Restricted Subsidiary Subsidiaries are unconditionally released from further liabilityliability in writing or that are otherwise cancelled or terminated in connection with the transaction with such transferee;
(bB) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof cash (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(c) Productive Assetswithin 360 days of the applicable Asset Sale; and
(dC) any Designated Noncash Non-cash Consideration received by the Issuers Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (dC) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.020.0 million or 2.0% of Total Assets, Consolidated Cash Flow at the time of the receipt of such Designated Non-cash Consideration (with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value). If at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is repaid or converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then the date of such repayment, conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Proceeds thereof shall be applied in accordance with this Section 4.12.
(b) Within 450 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay secured Indebtedness or otherwise retire debt Indebtedness of a non- Guarantor Restricted Subsidiary owed to a Person that is not an Affiliate of the Company and, except in the case of Indebtedness under the Credit Facilities or any other Agreement, if the Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company)repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to prepay, repay or otherwise retire unsecured repurchase any Indebtedness of the Company or any of its Restricted Subsidiaries which is not expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Company, so long as a pro rata offer is made in accordance with or the procedures set forth Note Guarantee, in the next paragraph to all holders case of other unsecured Indebtedness issued by the Companya Guarantor; or
(3) to invest purchase Replacement Assets or make a capital expenditure in Productive Assetsor that is used or useful in a Permitted Business; provided that any such amount that, if during the 365 day period following the consummation of Net Proceeds which an Asset Sale, the Company or a Restricted Subsidiary thereof has enters into a definitive binding agreement committing it to apply the Net Proceeds in accordance with the requirements of this clause (3) after such 365 day period, such 365 day period will be extended with respect to the amount of Net Proceeds so committed until such Net Proceeds are required to invest be applied in Productive Assets accordance with such agreement (but such extension will in no event be for a period longer than 180 days) or, if earlier, the date of termination of such agreement; provided, further, that in the event such binding commitment is later canceled or terminated for any reason before such Net Proceeds are so applied, then such Net Proceeds shall constitute Excess Proceeds unless the Company or such Restricted Subsidiary enters into another binding commitment (a “Second Commitment”) within 450 six months of such cancellation or termination of the prior binding commitment; provided, further, that the Company or such Restricted Subsidiary may only enter into a Second Commitment under the foregoing provision one time with respect to each Asset Sale and to the extent such Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied or are not applied within 180 days of such Second Commitment, then such Net Proceeds shall constitute Excess Proceeds. Following the applicable entering into of a binding agreement with respect to an Asset Sale may be invested in Productive Assets within two years and prior to the consummation thereof, Cash Equivalents (whether or not actual Net Proceeds of such Asset Sale; provided ) used for the purposes described in clause (3) that are designated as used in accordance with clause (13), and not previously or subsequently so designated in respect of any other Asset Sale, shall be deemed to be Net Proceeds applied in accordance with clause (3).
(c) pending 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.
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in clause (1), (2) or (3) of Section 4.12(b) will constitute “Excess Proceeds.” Within 30 days after the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will make an Asset Sale Offer (using the procedures set forth in Section 3.04) to all Noteholders and all holders of other Indebtedness that is pari passu with the Notes or any Note Guarantee containing provisions similar to those set forth in this Indenture with respect to offers to purchase with the proceeds of sales of assets, to purchase the maximum principal amount of the Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The Company and its Restricted Subsidiaries may make an Asset Sale Offer under this section using Net Proceeds prior to the time any such Net Proceeds become Excess Proceeds, in which case such Net Proceeds shall be deemed to have been applied within the time frame required by this Section 4.12. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount of the Notes and such other pari passu Indebtedness plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of the Notes and such other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of any Excess Proceeds, the Notes and such Applicable other pari passu Indebtedness shall be purchased on a pro rata basis based on the principal amount of the Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds pursuant to thisshall be reset at zero.
Appears in 3 contracts
Sources: Indenture (SB/RH Holdings, LLC), Indenture (SB/RH Holdings, LLC), Indenture (SB/RH Holdings, LLC)
Limitation on Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the CompanyCompany and evidenced by a resolution of such Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 60 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to this
Appears in 3 contracts
Sources: Indenture (CCH Ii Capital Corp), Indenture (Charter Communications Inc /Mo/), Indenture (Cco Holdings Capital Corp)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such the Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such the fair market value is determined by (a) an executive officer of the Managing General Partner if the value is less than $15.0 million and evidenced by a Officers’ Certificate delivered to the Trustee, or (b) the Managing General Partner’s Board of Directors if the value is $15.0 million or more and evidenced by a resolution of the Board of Directors of set forth in an Officers’ Certificate delivered to the CompanyTrustee; and
(3) at least 75% of the aggregate consideration from such received by the Company and its Restricted Subsidiaries in the Asset Sale, together with Sale and all other Asset Sales since the Issue Date on a cumulative basis (including by way date of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary this Indenture is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11provision, each of the following shall will be deemed to be cash:
(a) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) , of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are are, within 90 days after the Asset Sale, converted by the recipient thereof Company or such Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a any such Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such those Net Proceeds (the “Applicable Proceeds”) at its optionoption to any combination of the following:
(1I) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company)Senior Debt;
(2II) to repay acquire all or otherwise retire unsecured Indebtedness substantially all of the Companyproperties or assets of a Person primarily engaged in a Permitted Business;
(III) to acquire a majority of the Voting Stock of a Person primarily engaged a Permitted Business;
(IV) to make capital expenditures; or
(V) to acquire other long-term assets that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, so long the Company or any such Restricted Subsidiary may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as a pro rata offer is made in accordance with the procedures set forth provided in the next preceding paragraph will constitute “Excess Proceeds.” On the 361st day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $20.0 million, the Company will make an Asset Sale Offer to all Holders of Notes, and to all holders of other unsecured Pari Passu Indebtedness issued by then outstanding, to purchase the Company; or
(3) to invest in Productive Assets; provided that any such maximum principal amount of Net Notes and such 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 principal amount plus accrued and unpaid interest, if any, to the Settlement Date, 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 Settlement Date, and will be payable in cash. If any Excess Proceeds which remain after consummation of an Asset Sale Offer, the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of the applicable Notes and Pari Passu Indebtedness tendered into such Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such Pari Passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any such Applicable Proceeds other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to thisan Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such conflict.
Appears in 3 contracts
Sources: Indenture (Inergy L P), Indenture (Inergy L P), Indenture (Inergy L P)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (provided such Fair Market Value shall be determined (i) as of the date of contractually agreeing to such Asset Sale and (ii) in good faith by an Officer of the Company or, if the consideration with respect to such Asset Sale exceeds $30.0 million, the Board of Directors of the Company) of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(32) at least 75% of the aggregate consideration from such received by the Company or its Restricted Subsidiaries in the Asset Sale, together with Sale and all other Asset Sales since the Issue Initial Issuance Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents; provided, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11however, each of the following shall be deemed to be cashthat:
(aA) any liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any such Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or assumption agreement that releases the Company or such Restricted Subsidiary from further liabilityliability shall be deemed to be cash for purposes of this provision;
(bB) any securities, notes or other obligations Marketable Securities received by the Company or any such Restricted Subsidiary from such transferee that are converted within 90 days after such Asset Sale by the recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof cash (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion)) shall be deemed to be cash for purposes of this provision;
(cC) Productive Assetsany securities, notes or other obligations (other than Marketable Securities) received by the Company or such Restricted Subsidiary from such transferee that are converted within 180 days after such Asset Sale by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion) shall be deemed to be cash for purposes of this provision; and
(dD) any Designated Noncash Non-cash Consideration received by the Issuers Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (d) that is at that time outstanding, not to exceed the greater of (ix) $4.5 billion 15.0 million and (iiy) 3.01.5% of Total Consolidated Net Tangible Assets, at the time of receipt of such Designated Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value. ) shall be deemed cash for the purposes of this provision; provided that in the case of any Asset Sale pursuant to a condemnation, appropriation or similar taking, including by deed in lieu of condemnation, such Asset Sale shall not be required to satisfy the requirements of items (1) and (2) of this Section 4.10(a).
(b) Within 450 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a any such Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (to any combination of the “Applicable Proceeds”) at its optionfollowing:
(1) to repay permanently repay, redeem, purchase or otherwise retire debt under cash collateralize the Credit Facilities or principal of any other senior Indebtedness of the Company or any Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);Subsidiary; or
(2) to repay acquire or invest in (including by way of a purchase of assets or stock, merger, consolidation or otherwise) Additional Assets or to make a capital expenditure; provided that the requirements of this clause (2) will be deemed to be satisfied if an agreement committing to make the acquisitions, investments or expenditures referred to above is entered into by the Company or any of its Restricted Subsidiaries within 365 days after the receipt of such Net Proceeds with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment in accordance with such agreement within 180 days after such 365-day period, and if such Net Proceeds are not so applied within such 180-day period, then such Net Proceeds will constitute Excess Proceeds (as defined below).
(c) Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce outstanding revolving credit borrowings, including borrowings under the Revolving Credit Facility, or otherwise retire unsecured invest such Net Proceeds in any manner that is not prohibited by the Indenture.
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(b) will be deemed to constitute “Excess Proceeds”. On the 366th day after the Asset Sale (or, at the Company's option, such earlier date), if the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will be required to make an offer (an “Asset Sale Offer”) to all Holders of Notes and, to the extent required by the terms of other Pari Passu Indebtedness, to all holders of other Pari Passu Indebtedness outstanding with similar provisions requiring the Company to make an offer to purchase such Pari Passu Indebtedness with the proceeds from any Asset Sale (“Pari Passu Notes”), to purchase the maximum principal amount of Notes and any such Pari Passu Notes to which the Asset Sale Offer applies that may be purchased out of the CompanyExcess Proceeds, so long as a pro rata at an offer is made price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Notes, plus accrued and unpaid interest and Additional Amounts, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture or the next paragraph agreements governing the Pari Passu Notes, as applicable. To the extent that the aggregate principal amount of Notes tendered pursuant to all holders of other unsecured Indebtedness issued an Asset Sale Offer is less than the amount that the Company is required to repurchase, the Company may use any remaining Excess Proceeds for any purpose not prohibited by the Company; or
Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof and other Pari Passu Notes surrendered by holders or lenders, collectively, exceeds the amount that the Company is required to repurchase, the Trustee shall select the Notes, and the Company shall select such Pari Passu Notes to be purchased on a pro rata basis on the basis of the aggregate principal amount of tendered Notes and Pari Passu Notes (3) to invest in Productive Assets; provided except that any Notes represented by a Note in global form will be selected by such amount of Net Proceeds which method as the Depositary or its nominee or successor may require or, where the nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate), based on the amounts tendered or required to be redeemed (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or a Restricted Subsidiary thereof has committed to invest an integral multiple of $1,000 in Productive Assets within 450 days excess thereof, will be purchased). Upon completion of the applicable each Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Offer, the amount of Excess Proceeds shall be reset at zero and any Net Proceeds that were formerly Excess Proceeds may be used for any general corporate purpose (including but not limited to the repurchase, repayment or other acquisition or retirement of any subordinated Indebtedness or Disqualified Stock). If the Purchase Date is on or after an interest payment record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Amount, if any, will be paid to the Person in whose name a Note is registered at the close of business on such Applicable Proceeds record date, and no other interest or Additional Amounts, if any, will be payable to Holders who tender Notes pursuant to thisthe Asset Sale Offer. The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Indenture by virtue of compliance with such laws and regulations.
Appears in 3 contracts
Sources: Indenture (Era Group Inc.), Indenture (Era Group Inc.), Indenture (Seacor Holdings Inc /New/)
Limitation on Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof there- of into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion 1,000.0 million and (ii) 3.0% of Total Assets, 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. Within 450 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(32) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 365 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; . The amount of any Net Proceeds received from Asset Sales that are not applied or invested as provided in the preceding paragraph shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $250 million, the Company shall make an Asset Sale Offer to all Holders and all holders of other Indebtedness that (1) pending is of equal priority with the final application Notes containing provisions requiring offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other Indebtedness of equal priority that may be purchased out of the Excess Proceeds, which amount includes the entire amount of the Net Proceeds. The offer price in any Asset Sale Offer shall be payable in cash and equal to 100.0% of the principal amount of the subject Notes plus accrued and unpaid interest and Special Interest, if any, to the date of purchase. If the aggregate principal amount of Notes and such other Indebtedness of equal priority tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes (on as nearly a pro rata basis as possible among the Notes subject to DTC procedures) and such other Indebtedness of equal priority to be purchased on a pro rata basis. If any Excess Proceeds remain after consummation of an Asset Sale Offer, then the Company or any Restricted Subsidiary thereof may use such Applicable remaining Excess Proceeds for any purpose not otherwise prohibited by this Supplemental Indenture. Upon completion of any Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. In the event that the Company shall be required to commence an offer to Holders to purchase Notes pursuant to thisthis Section 4.11, it shall follow the procedures specified in Sections 3.09.
Appears in 3 contracts
Sources: Fourth Supplemental Indenture (Charter Communications, Inc. /Mo/), Third Supplemental Indenture (Charter Communications, Inc. /Mo/), Fifth Supplemental Indenture (Charter Communications, Inc. /Mo/)
Limitation on Asset Sales. (A) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such the applicable Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed ofof (as determined in good faith by the Company's Board of Directors);
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or the Restricted Subsidiary, as the case may be, from such Restricted Subsidiary is Asset Sale shall be in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following Replacement Assets and shall be deemed to be cashreceived at the time of such disposition; provided that:
(a) the amount of any liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any such Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the NotesNotes or any Guarantee of a Guarantor) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;assets, and
(b) the fair market value of any securities, notes securities or other obligations assets received by the Company or any such Restricted Subsidiary from in exchange for any such transferee assets that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities cash within 180 days after receipt thereof (such Asset Sale, shall be deemed to the extent be cash for purposes of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assetsthis provision; and
(d3) any Designated Noncash Consideration received by upon the Issuers 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) that is at that time outstanding, not to exceed the greater consummation of (i) $4.5 billion and (ii) 3.0% of Total Assets, 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. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company shall apply, or a cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof (provided that if the Company or such Restricted Subsidiary, as the case may be, has entered into an agreement in definitive form to so apply an amount equal to such Net Cash Proceeds, the Applicable Percentage transaction contemplated by such agreement must be consummated within the later of such Net Proceeds (365 day period and 120 days from the “Applicable Proceeds”date of the execution of such agreement) at its optioneither:
(1a) to repay or otherwise retire debt any Obligations under the Credit Facilities Agreement or any other Guarantor Senior Debt and, in the case of any such Indebtedness under a revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility;
(b) to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale or in properties and assets (including Capital Stock) that will be used in the Restricted Subsidiaries business of the Company and its Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably related thereto (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company"Replacement Assets");; and/or
(2c) to repay or otherwise retire unsecured Indebtedness a combination of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued repayment and investment permitted by the Company; or
foregoing clauses (33)(a) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that and (1) pending the final application of the amount of any such Applicable Proceeds pursuant to this3)(b).
Appears in 3 contracts
Sources: Indenture (Dole Food Co Inc), Indenture (Dole Food Co Inc), Indenture (Dole Food Company Inc)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such one or more of its Restricted Subsidiary Subsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary Subsidiaries, exclusive of indemnities, as the case may be, from such Asset Sale is in the form of cash, cash or Cash Equivalents or readily marketable securities. For purposes and is received at the time of this Section 4.11, each such disposition; provided that the amount of the following shall be deemed to be cash:
(a) any liabilities (of the Company or any such Restricted Subsidiary, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of sheet (or in the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) notes thereto), that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
assets, (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or such Restricted Subsidiary into cash, cash or Cash Equivalents or readily marketable securities within 180 days after receipt thereof (one year of the time of such disposition, to the extent of the cash, cash or Cash Equivalents or readily marketable securities received in that conversion);
and (c) Productive Assets; and
(d) any Designated Noncash Non-Cash Consideration received by the Issuers Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (dc) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion 225.0 million and (ii) 3.0% of the Company’s Total Assets, with the fair market value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value. Within 450 days after , will be deemed to be cash for the receipt purposes of any Net Proceeds from this clause (2); and
(3) upon the consummation of an Asset Sale, the Company applies directly or through a Restricted Subsidiary thereof may apply Subsidiary, or causes one or more of its Restricted Subsidiaries to apply, an amount equal to the Applicable Percentage Net Cash Proceeds relating to such Asset Sale within 455 days of such Net Proceeds (receipt thereof, at the “Applicable Proceeds”) at its optionoption of the Company, either:
(1A) to repay any Secured Indebtedness the incurrence of which was permitted by this Indenture (and, if the Indebtedness repaid is revolving credit facility Indebtedness, to correspondingly reduce commitments with respect thereto), other than Indebtedness owed to the Company or another Restricted Subsidiary;
(B) to repay any Indebtedness of a Restricted Subsidiary that is not a Guarantor;
(C) to repay or otherwise retire debt under repurchase Pari Passu Indebtedness (provided that the Credit Facilities Issuer shall (i) redeem or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as repurchase at least a pro rata portion of the Securities (based on the amount so applied to such repayments or repurchases of Pari Passu Indebtedness), by, at the Company’s option, (a) redeeming the Securities as described under P▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ 6 or Paragraph 7 of the Securities and Section 3.03 or (b) through privately negotiated transactions or open-market purchases (to the extent such purchases are a price at or above 100% of the principal amount thereof plus the amount of accrued but unpaid interest, if any, thereon) or (ii) offer is made to redeem or repurchase at least a pro rata portion of the Securities (based on the amount so applied to such repayments or repayments or repurchases of such Pari Passu Indebtedness) by making an offer (in accordance with the procedures set forth in the next paragraph below for a Net Proceeds Offer) to all holders Holders to purchase the Securities at a price at or above 100% of other unsecured Indebtedness issued by the Companyprincipal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Securities that would otherwise be prepaid);
(D) to reinvest in Productive Assets (or enter into a binding commitment to reinvest, if such reinvestment is effected within 180 days after the date of such commitment); or
(E) a combination of prepayment, reduction and investment permitted by the foregoing clauses (3)(A) through (3)(D); provided that the 75% limitation referred to above will not apply to any sale, transfer or other disposition of assets in which the cash portion of the consideration received therefor is equal to or greater than what the after tax net proceeds would have been had such transaction complied with the aforementioned 75% limitation. On the 456th day after an Asset Sale (or, if later, the 181st day after the entry into a binding commitment to reinvest) or such earlier date, if any, as the Company in good faith determines not to apply an amount equal to the Net Cash Proceeds relating to such Asset Sale as set forth in clause (3) of the preceding sentence (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Cash Proceeds that have not been so applied on or before such Net Proceeds Offer Trigger Date as permitted in clause (3)) of the preceding sentence (each, a “Net Proceeds Offer Amount”) the Issuer will make an offer to invest repurchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date (or such longer period as may be required by law), from all Holders, that amount of Securities equal to the aggregate amount of Net Cash Proceeds that have not been so applied on or before such Net Proceeds Offer Trigger Date as permitted in clause (3) of the preceding sentence multiplied by a fraction, the numerator of which is the aggregate principal amount of Securities then outstanding and the denominator of which is the sum of the aggregate principal amount of Securities and Pari Passu Indebtedness then outstanding (the “Pro Rata Amount”), at a price equal to 100% of the principal amount of the Securities to be repurchased, plus accrued and unpaid interest to the date of repurchase. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $75.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates at least $75.0 million, at which time the Issuer will apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer, the first date the aggregate of all such deferred Net Proceeds Offer Amounts is at least $75.0 million being deemed to be a Net Proceeds Offer Trigger Date. To the extent that the aggregate purchase price of Securities tendered pursuant to any Net Proceeds Offer is less than the Pro Rata Amount, the Issuer or any Guarantor may use such amount for any purpose not prohibited by this Indenture. Upon completion of any Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset to zero. Notwithstanding the first two paragraphs of this Section 4.16, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraphs to the extent
(1) at least 50% of the consideration for such Asset Sale constitutes Productive Assets; and
(2) such Asset Sale is for fair market value; provided that the fair market value of any such amount of Net Proceeds which consideration not constituting Productive Assets received by the Company or a any of its Restricted Subsidiary thereof has committed Subsidiaries in connection with any Asset Sale permitted to invest in Productive Assets within 450 days be consummated under this paragraph will constitute Net Cash Proceeds subject to the provisions of the applicable first two paragraphs of this Section 4.16. In the event of the transfer of substantially all, but not all, of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, the successor corporation will be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.16, and will comply with the provisions of this Section 4.16 with respect to such deemed sale as if it were an Asset Sale may be invested in Productive Assets within two years Sale. In addition, the fair market value of such Asset Sale; provided that properties and assets of the Company or its Restricted Subsidiaries deemed to be sold will be deemed to be Net Cash Proceeds for purposes of this Section 4.16. Notice of a Net Proceeds Offer will be sent electronically or mailed, by first class mail, by the Issuer to Holders as shown on the register of Holders at their last registered address not less than 30 days nor more than 60 days before the Net Proceeds Offer Payment Date, with a copy to the Trustee. The notice shall contain instructions and materials necessary to enable such Holders to tender Securities pursuant to the Net Proceeds Offer and shall state the following terms:
(1) pending that the final application Net Proceeds Offer is being made pursuant to this Section 4.16, that all Securities tendered will be accepted for payment; provided, however, that if the aggregate principal amount of Securities tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of the Net Proceeds Offer, the Trustee will select the Securities or portions thereof to be repurchased (with such adjustments as may be deemed appropriate by the Issuer so that only Securities in denominations of $2,000 or multiples thereof shall be purchased) among the Holders as follows: (i) if the Securities are listed, in compliance with any applicable requirements of the principal national securities exchange on which the Securities are listed; or (ii) if the Securities are not so listed, on a pro rata basis, by lot or by any other method the trustee considers fair and appropriate. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by law;
(2) the Net Proceeds Offer Amount (including the amount of accrued interest) and the Net Proceeds Offer Payment Date (which shall be not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date (or such longer period as may be required by law) and which shall be at least five Business Days after the Trustee receives notice thereof from the Issuer);
(3) that any such Applicable Proceeds Security not tendered will continue to accrue interest;
(4) that, unless the Issuer defaults in making payment therefor, any Security accepted for payment pursuant to thisthe Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Date;
(5) that Holders electing to have a Security purchased pursuant to a Net Proceeds Offer will be required to surrender the Security, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day prior to the Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the second Business Day prior to the Net Proceeds Offer Payment Date, electronic mail in pdf format, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities such Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Securities purchased; and
(7) that Holders whose Securities are purchased only in part will be issued new Securities in a principal amount equal to the unpurchased portion of the Securities surrendered; provided, however, that each Security purchased and each new Security issued shall be subject to the Minimum Denominations Requirement. On or before the Net Proceeds Offer Payment Date, the Issuer shall (i) accept for payment Securities or portions thereof tendered pursuant to the Net Proceeds Offer which are to be purchased in accordance with item (1) above, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price plus accrued interest, if any, of all Securities to be purchased and (iii) deliver to the Trustee Securities so accepted together with an Officer’s Certificate of the Issuer stating the Securities or portions thereof being purchased by the Issuer. The Paying Agent shall promptly mail to the Holders of Securities so accepted payment in an amount equal to the purchase price plus accrued interest, if any. For purposes of this Section 4.16, the Trustee shall act as the Paying Agent. Any amounts remaining after the purchase of Securities pursuant to a Net Proceeds Offer promptly shall be returned by the Trustee to the Issuer. If an offer is made to repurchase the Securities pursuant to a Net Proceeds Offer, the Company will and will cause its Restricted Subsidiaries to comply with all tender offer rules under state and federal securities laws, including, but not limited to, Section 14(e) under the Exchange Act and Rule 14e-1 thereunder, to the extent applicable to such offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.16, the Company and the Issuer shall comply with the applicable securities laws and obligations and shall not be deemed to have breached their obligations hereunder by virtue thereof.
Appears in 3 contracts
Sources: Indenture (Scientific Games Corp), Indenture (Scientific Games Corp), Indenture (Scientific Games Corp)
Limitation on Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis therefor (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(32) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 365 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; . The amount of any Net Proceeds received from Asset Sales that are not applied or invested as provided in the preceding paragraph shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $250.0 million, the Company shall make an Asset Sale Offer to all Holders and all holders of other Indebtedness that (1) pending is of equal priority with the final application Notes containing provisions requiring offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other Indebtedness of equal priority that may be purchased out of the Excess Proceeds, which amount includes the entire amount of the Net Proceeds. The offer price in any Asset Sale Offer shall be payable in cash and equal to 100.0% of the principal amount of the subject Notes plus accrued and unpaid interest and Special Interest, if any, to the date of purchase. If the aggregate principal amount of Notes and such other Indebtedness of equal priority tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes (on as nearly a pro rata basis as possible among the Notes subject to DTC procedures) and such other Indebtedness of equal priority to be purchased on a pro rata basis. If any Excess Proceeds remain after consummation of an Asset Sale Offer, then the Company or any Restricted Subsidiary thereof may use such Applicable remaining Excess Proceeds for any purpose not otherwise prohibited by this Supplemental Indenture. Upon completion of any Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. In the event that the Company shall be required to commence an offer to Holders to purchase Notes pursuant to thisthis Section 4.11, it shall follow the procedures specified in Section 3.09.
Appears in 3 contracts
Sources: Third Supplemental Indenture (Cco Holdings LLC), Seventh Supplemental Indenture (Charter Communications, Inc. /Mo/), Sixth Supplemental Indenture (Charter Communications, Inc. /Mo/)
Limitation on Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 7575.0% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion 500.0 million and (ii) 3.0% of Total Assets, 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. Within 450 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(32) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 365 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; . The amount of any Net Proceeds received from Asset Sales that are not applied or invested as provided in the preceding paragraph shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company shall make an Asset Sale Offer to all Holders and all holders of other Indebtedness that (1) pending is of equal priority with the final application Notes containing provisions requiring offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other Indebtedness of equal priority that may be purchased out of the Excess Proceeds, which amount includes the entire amount of the Net Proceeds. The offer price in any Asset Sale Offer shall be payable in cash and equal to 100.0% of the principal amount of the subject Notes plus accrued and unpaid interest, if any, to the date of purchase. If the aggregate principal amount of Notes and such other Indebtedness of equal priority tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other Indebtedness of equal priority to be purchased on a pro rata basis. If any Excess Proceeds remain after consummation of an Asset Sale Offer, then the Company or any Restricted Subsidiary thereof may use such Applicable remaining Excess Proceeds for any purpose not otherwise prohibited by this Supplemental Indenture. Upon completion of any Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. In the event that the Company shall be required to commence an offer to Holders to purchase Notes pursuant to thisthis Section 4.11, it shall follow the procedures specified in Sections 3.01 through 3.09.
Appears in 3 contracts
Sources: Third Supplemental Indenture (Charter Communications, Inc. /Mo/), Second Supplemental Indenture (Charter Communications, Inc. /Mo/), First Supplemental Indenture (Charter Communications, Inc. /Mo/)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
: (1i) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the Property or assets or Equity Interests issued or sold or otherwise disposed of;
; (2) such fair market value is determined by the Board of Directors of the Company; and
(3ii) at least 7585% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in for such Property or assets consists of cash or Eligible Cash Equivalents; provided that the form amount of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than (x) contingent liabilities and liabilities that are by their terms subordinated subordinate to the NotesNotes or any Guarantee thereof by any Restricted Subsidiary and (y) unsecured liabilities) that are assumed in writing by the transferee of any such assets pursuant (and for which the Company receives a written release from the creditors) will be deemed to a customary novation agreement that releases be cash for the purposes of this clause (ii); and (iii) the Net Cash Proceeds received by the Company or such Restricted Subsidiary from further liability;
relating to Assets Sales are applied as set forth in clause (bA) or (B) in each case to the extent that the Company elects or is so required: (A) to repay or purchase and reduce outstanding Applicable Debt and, in the case of revolving loans and other similar obligations, reduce the commitment thereunder; provided, however, that such repayment and commitment reduction occurs within 270 days following the receipt of such Net Cash Proceeds; or (B) to an investment in Replacement Assets; provided, however, that such investment occurs or the Company or such Restricted Subsidiary enters into contractual commitments to make such investment, subject only to customary conditions (other than the obtaining of financing), on or prior to the 270th day following receipt of such Net Cash Proceeds and Net Cash Proceeds contractually committed are commenced to be so applied within 365 days following the receipt of such Net Cash Proceeds; and provided, further, that, with respect to Asset Sales involving Collateral, such Replacement Assets shall become subject to a Second Priority Lien in favor of the Trustee on behalf of the Holders. Notwithstanding any securitiesprovision of this Section 4.9, notes or other obligations received Asset Swaps entered into by the Company or any such Restricted Subsidiary in the normal course of business shall not be subject to clause (ii) of the immediately preceding sentence.
(b) Any Net Cash Proceeds from such transferee any Asset Sale involving Collateral that are converted by the recipient thereof into cash, not used to reinvest in Replacement Assets or to repay Applicable Debt in accordance with this Section 4.9 shall constitute "Collateral Excess Proceeds." Any Net Cash Equivalents or readily marketable securities within 180 days after receipt thereof (Proceeds from any Asset Sale not involving Collateral that are not used to the extent of the cash, Cash Equivalents or readily marketable securities received reinvest in that conversion);Replacement Assets and/or repay Applicable Debt shall constitute "Excess Proceeds."
(c) Productive Assets; andWhen the aggregate amount of Collateral Excess Proceeds exceeds $10,000,000, the Issuers shall make an Offer to Purchase, from all Holders on a pro rata basis, Notes in an aggregate principal amount equal to the Collateral Excess Proceeds, at a Purchase Price in cash equal to 100% of the principal amount thereof, together with accrued interest, if any, to the Purchase Date. To the extent that any amount of Collateral Excess Proceeds remains after completion of such Offer to Purchase, the Company may use such remaining amount for general corporate purposes, and the amount of Collateral Excess Proceeds shall be reset to zero.
(d) any Designated Noncash Consideration received by When the aggregate amount of Excess Proceeds exceeds $5,000,000, the Issuers or any Restricted Subsidiary shall make an Offer to Purchase, from all Holders on a pro rata basis, Notes in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an principal amount equal to the Excess Proceeds, at a Purchase Price in cash equal to 100% of the principal amount thereof, together with accrued interest, if any, to the Purchase Date; provided, however, that if the Issuers elect (or are required by the terms of any Applicable Percentage Debt), such Offer to Purchase may be made ratably to purchase the Notes and such Applicable Debt. To the extent that any amount of Excess Proceeds remains after completion of such Net Offer to Purchase, the Company may use such remaining amount for general corporate purposes, and the amount of Excess Proceeds (the “Applicable Proceeds”) at its option:shall be reset to zero.
(1e) On or before the Purchase Date, the Trustee shall, to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Companyextent lawful, so long as accept for payment, on a pro rata offer is made basis or by such other method as the Trustee shall deem fair and appropriate to the extent necessary, Notes or portions thereof or beneficial interests under a Global Note properly tendered pursuant to the Offer to Purchase, deposit with the Paying Agent U.S. legal tender sufficient to pay the purchase price plus accrued interest, if any, on the Notes to be purchased and deliver to the Trustee an Officers' Certificate stating that such Notes or portions thereof were accepted for payment by the Issuers in accordance with the procedures set forth in the next paragraph to all holders terms of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thisthis Section 4.
Appears in 3 contracts
Sources: Indenture (Petro Stopping Centers L P), Indenture (Petro Financial Corp), Indenture (Petro Stopping Centers Holdings Lp)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such the Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such the fair market value is determined by the Company’s Board of Directors of the Companyand evidenced by a Board Resolution; and
(3) at least 75% of the consideration from such received in the Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or readily marketable securitiesEquivalents. For purposes of this clause (3) of Section 4.114.10 only, each of the following shall will be deemed to be cashcash or Cash Equivalents:
(a) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) , of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or such Subsidiary into cashcash within 270 days of the receipt thereof, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);; and
(c) Productive Assets; and
(d) with respect to any Designated Noncash Consideration received by Asset Sale of oil and natural gas properties where the Issuers Company or any such Restricted Subsidiary retains an interest in such Asset Sale having property, the aggregate costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant Affiliate thereof) agrees to this clause (d) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in valuepay. Within 450 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a any such Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such those Net Proceeds (the “Applicable Proceeds”) at its optionoption to any combination of the following:
(1I) to repay prepay, repay, redeem or otherwise retire debt under the Credit Facilities or repurchase any other Indebtedness of the Restricted Subsidiaries of the Company or a Guarantor (other than intercompany Indebtedness, Capital Stock or Indebtedness represented solely by a guarantee that is subordinated to the Notes or the Subsidiary Guarantees) or any Indebtedness of a Restricted Subsidiary of the Companythat is not a Guarantor (other than intercompany Indebtedness);
(2II) to repay 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;
(III) to acquire a majority of the Voting Stock of one or more other Persons primarily engaged in the Oil and Gas Business;
(IV) to make one or more capital expenditures; or
(V) to acquire other property or assets that are used or useful in the Oil and Gas Business. Pending the final application of any Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise retire unsecured Indebtedness of invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute “Excess Proceeds.” On the 361st day after the Asset Sale (or, at the Company’s option, so long as a pro rata offer is made in accordance with any earlier date), if the procedures set forth in aggregate amount of Excess Proceeds then exceeds $50.0 million, the next paragraph Company will make an Asset Sale Offer to all Holders of Notes, and to all holders of other unsecured Pari Passu Indebtedness issued by containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the Company; or
(3) proceeds of sales of assets, to invest in Productive Assets; provided that any such purchase the maximum principal amount of Net Notes and such other Pari Passu Indebtedness that may be purchased out of the Excess Proceeds, pursuant to the terms in Section 3.04 hereof and this Section 4.10. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest, if any, to the Settlement Date, 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 Settlement Date, and will be payable in cash. If any Excess Proceeds which remain after consummation of an Asset Sale Offer, the Company or a Restricted Subsidiary thereof has committed to invest 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 Productive Assets within 450 days of the applicable such Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Offer exceeds the amount of any Excess Proceeds, the Trustee will select the Notes and such Applicable Proceeds other Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate accreted value (if issued with original issue discount) or principal amount of tendered Notes and Pari Passu Indebtedness (provided that the selection of such Pari Passu Indebtedness shall be made pursuant to thisthe terms of such Pari Passu Indebtedness) (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000 or any integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other Applicable Law to the extent applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.04 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such compliance.
Appears in 2 contracts
Sources: Third Supplemental Indenture (Whiting Petroleum Corp), Fourth Supplemental Indenture (Whiting Petroleum Corp)
Limitation on Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the CompanyCompany and evidenced by a resolution of such Board of Directors set forth in an Officers’ Certificate delivered to the Trustee; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 60 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to this
Appears in 2 contracts
Sources: Indenture (Charter Communications Inc /Mo/), Indenture (Charter Communications Inc /Mo/)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such a Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such the fair market value is determined by (a) an executive officer of the General Partner if the value is less than $20.0 million and evidenced by an Officers’ Certificate delivered to the Trustee, or (b) the Company’s Board of Directors if the value is $20.0 million or more and evidenced by a resolution of the Board of Directors of set forth in an Officers’ Certificate delivered to the CompanyTrustee; and
(3) at least 75% of the aggregate consideration from such received by the Company and its Restricted Subsidiaries in the Asset Sale, together with Sale and all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief fromApril 21, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary 2011 is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11provision, each of the following shall will be deemed to be cash:
(a) any liabilities (liabilities, as shown on the Company’s or such any Restricted Subsidiary’s most recent balance sheet) , of the Company or any Restricted such Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are are, within 90 days after the Asset Sale, converted by the recipient thereof Company or such Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a any Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such those Net Proceeds (the “Applicable Proceeds”) at its optionoption to any combination of the following:
(1I) to repay repay, redeem, repurchase or otherwise retire debt under Senior Debt, including the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company)Notes;
(2II) to repay acquire all or otherwise retire unsecured Indebtedness substantially all of the Companyproperties or assets of a Person primarily engaged in a Permitted Business;
(III) to acquire a majority of the Voting Stock of a Person primarily engaged a Permitted Business;
(IV) to make capital expenditures; or
(V) to acquire other long-term assets that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, so long the Company or any Restricted Subsidiary may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as a pro rata offer is made in accordance with the procedures set forth provided in the next preceding paragraph will constitute “Excess Proceeds.” On the 361st day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $20.0 million, the Company will make an Asset Sale Offer to all Holders of Notes, and to all holders of other unsecured Pari Passu Indebtedness issued by then outstanding, to purchase the Company; or
(3) to invest in Productive Assets; provided that any such maximum principal amount of Net Notes and such 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 principal amount plus accrued and unpaid interest, if any, to the Settlement Date, 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 Settlement Date, and will be payable in cash. If any Excess Proceeds which remain after consummation of an Asset Sale Offer, the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of the applicable Notes and Pari Passu Indebtedness tendered into such Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and the agent of the trustee for such other Pari Passu Indebtedness shall select such Pari Passu Indebtedness to be purchased on a pro rata basis as set forth in Section 3.09(h) of this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any such Applicable Proceeds other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to thisan Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such conflict.
Appears in 2 contracts
Sources: Indenture (Calumet Specialty Products Partners, L.P.), Indenture (Calumet Specialty Products Partners, L.P.)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such one or more of its Restricted Subsidiary Subsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary Subsidiaries, exclusive of indemnities, as the case may be, from such Asset Sale is in the form of cash, cash or Cash Equivalents or readily marketable securities. For purposes and is received at the time of this Section 4.11, each such disposition; provided that the amount of the following shall be deemed to be cash:
(a) any liabilities (of the Company or any such Restricted Subsidiary, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of sheet (or in the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) notes thereto), that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
assets, (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or such Restricted Subsidiary into cash, cash or Cash Equivalents or readily marketable securities within 180 days after receipt thereof (one year of the time of such disposition, to the extent of the cash, cash or Cash Equivalents or readily marketable securities received in that conversion);
and (c) Productive Assets; and
(d) any Designated Noncash Non-Cash Consideration received by the Issuers Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (dc) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion 225.0 million and (ii) 3.0% of the Company’s Total Assets, with the fair market value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value. Within 450 days after , will be deemed to be cash for the receipt purposes of any Net Proceeds from this clause (2); and
(3) upon the consummation of an Asset Sale, the Company applies directly or through a Restricted Subsidiary thereof may apply Subsidiary, or causes one or more of its Restricted Subsidiaries to apply, an amount equal to the Applicable Percentage Net Cash Proceeds relating to such Asset Sale within 455 days of such Net Proceeds (receipt thereof, at the “Applicable Proceeds”) at its optionoption of the Company, either:
(1A) to repay any Secured Indebtedness the incurrence of which was permitted by this Indenture (and, if the Indebtedness repaid is revolving credit facility Indebtedness, to correspondingly reduce commitments with respect thereto), other than Indebtedness owed to the Company or another Restricted Subsidiary;
(B) to repay any Indebtedness of a Restricted Subsidiary that is not a Guarantor;
(C) to repay or otherwise retire debt under repurchase Pari Passu Indebtedness (provided that the Credit Facilities Issuer shall (i) redeem or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as repurchase at least a pro rata portion of the Securities (based on the amount so applied to such repayments or repurchases of Pari Passu Indebtedness), by, at the Company’s option, (a) redeeming the Securities as described under Paragraph 5, Paragraph 6 or Paragraph 7 of the Securities and Section 3.03 or (b) through privately negotiated transactions or open-market purchases (to the extent such purchases are a price at or above 100% of the principal amount thereof plus the amount of accrued but unpaid interest, if any, thereon) or (ii) offer is made to redeem or repurchase at least a pro rata portion of the Securities (based on the amount so applied to such repayments or repayments or repurchases of such Pari Passu Indebtedness) by making an offer (in accordance with the procedures set forth in the next paragraph below for a Net Proceeds Offer) to all holders Holders to purchase the Securities at a price at or above 100% of other unsecured Indebtedness issued the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Securities that would otherwise be prepaid);
(D) to reinvest in Productive Assets (or enter into a binding commitment to reinvest, if such reinvestment is effected within 180 days after the date of such commitment); or
(E) a combination of prepayment, reduction and investment permitted by the Company; foregoing clauses (3)(A) through (3)(D); provided that the 75% limitation referred to above will not apply to any sale, transfer or other disposition of assets in which the cash portion of the consideration received therefor is equal to or greater than what the after tax net proceeds would have been had such transaction complied with the aforementioned 75% limitation. On the 456th day after an Asset Sale (or, if later, the 181st day after the entry into a binding commitment to reinvest) or such earlier date, if any, as the Company in good faith determines not to apply an amount equal to the Net Cash Proceeds relating to such Asset Sale as set forth in clause (3) of the preceding sentence (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Cash Proceeds that have not been so applied on or before such Net Proceeds Offer Trigger Date as permitted in clause (3)) of the preceding sentence (each, a “Net Proceeds Offer Amount”) the Issuer will make an offer to repurchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date (or such longer period as may be required by law), from all Holders, that amount of Securities equal to the aggregate amount of Net Cash Proceeds that have not been so applied on or before such Net Proceeds Offer Trigger Date as permitted in clause (3) of the preceding sentence multiplied by a fraction, the numerator of which is the aggregate principal amount of Securities then outstanding and the denominator of which is the sum of the aggregate principal amount of Securities and Pari Passu Indebtedness then outstanding (the “Pro Rata Amount”), at a price equal to 100% of the principal amount of the Securities to be repurchased, plus accrued and unpaid interest to the date of repurchase. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $75.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates at least $75.0 million, at which time the Issuer will apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer, the first date the aggregate of all such deferred Net Proceeds Offer Amounts is at least $75.0 million being deemed to be a Net Proceeds Offer Trigger Date. To the extent that the aggregate purchase price of Securities tendered pursuant to any Net Proceeds Offer is less than the Pro Rata Amount, the Issuer or any Guarantor may use such amount for any purpose not prohibited by this Indenture. Upon completion of any Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset to zero. Notwithstanding the first two paragraphs of this Section 4.16, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraphs to the extent
(1) at least 50% of the consideration for such Asset Sale constitutes Productive Assets; and
(2) such Asset Sale is for fair market value; provided that the fair market value of any consideration not constituting Productive Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph will constitute Net Cash Proceeds subject to the provisions of the first two paragraphs of this Section 4.16. In the event of the transfer of substantially all, but not all, of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, the successor corporation will be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.16, and will comply with the provisions of this Section 4.16 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold will be deemed to be Net Cash Proceeds for purposes of this Section 4.16. Notice of a Net Proceeds Offer will be sent electronically or mailed, by first class mail, by the Issuer to Holders as shown on the register of Holders at their last registered address not less than 30 days nor more than 60 days before the Net Proceeds Offer Payment Date, with a copy to the Trustee. The notice shall contain instructions and materials necessary to enable such Holders to tender Securities pursuant to the Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.16, that all Securities tendered will be accepted for payment; provided, however, that if the aggregate principal amount of Securities tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of the Net Proceeds Offer, the Trustee will select the Securities or portions thereof to be repurchased (with such adjustments as may be deemed appropriate by the Issuer so that only Securities in denominations of $2,000 or multiples thereof shall be purchased) among the Holders as follows: (i) if the Securities are listed, in compliance with any applicable requirements of the principal national securities exchange on which the Securities are listed; or (ii) if the Securities are not so listed, on a pro rata basis, by lot or by any other method the trustee considers fair and appropriate. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by law;
(2) the Net Proceeds Offer Amount (including the amount of accrued interest) and the Net Proceeds Offer Payment Date (which shall be not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date (or such longer period as may be required by law) and which shall be at least five Business Days after the Trustee receives notice thereof from the Issuer);
(3) to invest in Productive Assets; provided that any such Security not tendered will continue to accrue interest;
(4) that, unless the Issuer defaults in making payment therefor, any Security accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Date;
(5) that Holders electing to have a Security purchased pursuant to a Net Proceeds Offer will be required to surrender the Security, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day prior to the Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the second Business Day prior to the Net Proceeds Offer Payment Date, electronic mail in pdf format, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities such ▇▇▇▇▇▇ delivered for purchase and a statement that such ▇▇▇▇▇▇ is withdrawing his election to have such Securities purchased; and
(7) that Holders whose Securities are purchased only in part will be issued new Securities in a principal amount equal to the unpurchased portion of the Securities surrendered; provided, however, that each Security purchased and each new Security issued shall be subject to the Minimum Denominations Requirement. On or before the Net Proceeds Offer Payment Date, the Issuer shall (i) accept for payment Securities or portions thereof tendered pursuant to the Net Proceeds Offer which the Company or a Restricted Subsidiary thereof has committed are to invest be purchased in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that accordance with item (1) pending above, (ii) deposit with the final application Paying Agent U.S. Legal Tender sufficient to pay the purchase price plus accrued interest, if any, of all Securities to be purchased and (iii) deliver to the Trustee Securities so accepted together with an Officer’s Certificate of the Issuer stating the Securities or portions thereof being purchased by the Issuer. The Paying Agent shall promptly mail to the Holders of Securities so accepted payment in an amount equal to the purchase price plus accrued interest, if any. For purposes of this Section 4.16, the Trustee shall act as the Paying Agent. Any amounts remaining after the purchase of Securities pursuant to a Net Proceeds Offer promptly shall be returned by the Trustee to the Issuer. If an offer is made to repurchase the Securities pursuant to a Net Proceeds Offer, the Company will and will cause its Restricted Subsidiaries to comply with all tender offer rules under state and federal securities laws, including, but not limited to, Section 14(e) under the Exchange Act and Rule 14e-1 thereunder, to the extent applicable to such offer. To the extent that the provisions of any such Applicable Proceeds pursuant securities laws or regulations conflict with this Section 4.16, the Company and the Issuer shall comply with the applicable securities laws and obligations and shall not be deemed to thishave breached their obligations hereunder by virtue thereof.
Appears in 2 contracts
Limitation on Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 7575.0% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion 500.0 million and (ii) 3.0% of Total Assets, 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. Within 450 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(32) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 365 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; . The amount of any Net Proceeds received from Asset Sales that are not applied or invested as provided in the preceding paragraph shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company shall make an Asset Sale Offer to all Holders and all holders of other Indebtedness that (1) pending is of equal priority with the final application Notes containing provisions requiring offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other Indebtedness of equal priority that may be purchased out of the Excess Proceeds, which amount includes the entire amount of the Net Proceeds. The offer price in any Asset Sale Offer shall be payable in cash and equal to 100.0% of the principal amount of the subject Notes plus accrued and unpaid interest, if any, to the date of purchase. If the aggregate principal amount of Notes and such other Indebtedness of equal priority tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such other Indebtedness of equal priority to be purchased on a pro rata basis. If any Excess Proceeds remain after consummation of an Asset Sale Offer, then the Company or any Restricted Subsidiary thereof may use such Applicable remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Upon completion of any Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. In the event that the Company shall be required to commence an offer to Holders to purchase Notes pursuant to thisthis Section 4.11, it shall follow the procedures specified in Sections 3.01 through 3.09.
Appears in 2 contracts
Sources: Indenture (Cco Holdings Capital Corp), Indenture (CCH Ii Capital Corp)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such a Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such the fair market value is determined by (a) an executive officer of the General Partner if the value is less than $35.0 million and evidenced by an Officers’ Certificate delivered to the Trustee, or (b) the Company’s Board of Directors if the value is $35.0 million or more and evidenced by a resolution of the Board of Directors of set forth in an Officers’ Certificate delivered to the CompanyTrustee; and
(3) at least 75% of the aggregate consideration from such received by the Company and its Restricted Subsidiaries in the Asset Sale, together with Sale and all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief fromApril 21, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary 2011 is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11provision, each of the following shall will be deemed to be cash:
(a) any liabilities (liabilities, as shown on the Company’s or such any Restricted Subsidiary’s most recent balance sheet) , of the Company or any Restricted such Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are are, within 90 days after the Asset Sale, converted by the recipient thereof Company or such Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a any Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such those Net Proceeds (the “Applicable Proceeds”) at its optionoption to any combination of the following:
(1I) to repay repay, redeem, repurchase or otherwise retire debt under Senior Debt, including the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company)Notes;
(2II) to repay acquire all or otherwise retire unsecured Indebtedness substantially all of the Companyproperties or assets of a Person primarily engaged in a Permitted Business;
(III) to acquire a majority of the Voting Stock of a Person primarily engaged a Permitted Business;
(IV) to make capital expenditures; or
(V) to acquire other long-term assets that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, so long the Company or any Restricted Subsidiary may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as a pro rata offer is made in accordance with the procedures set forth provided in the next preceding paragraph will constitute “Excess Proceeds.” On the 361st day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $50.0 million, the Company will make an Asset Sale Offer to all Holders of Notes, and to all holders of other unsecured Pari Passu Indebtedness issued by then outstanding, to purchase the Company; or
(3) to invest in Productive Assets; provided that any such maximum principal amount of Net Notes and such 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 principal amount plus accrued and unpaid interest, if any, to the Settlement Date, 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 Settlement Date, and will be payable in cash. If any Excess Proceeds which remain after consummation of an Asset Sale Offer, the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of the applicable Notes and Pari Passu Indebtedness tendered into such Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and the agent of the trustee for such other Pari Passu Indebtedness shall select such Pari Passu Indebtedness to be purchased on a pro rata basis as set forth in Section 3.09(h) of this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any such Applicable Proceeds other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to thisan Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such conflict.
Appears in 2 contracts
Sources: Indenture (Calumet Specialty Products Partners, L.P.), Indenture (Calumet Specialty Products Partners, L.P.)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such the Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Capital Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such received in the Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Eligible Cash Equivalents or readily marketable securitiesEquivalents. For purposes of this Section 4.11provision, each of the following shall will 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) sheet of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation assignment and assumption agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities cash within 180 days after of their receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);; and
(c) Productive Assets; and
(d) any Designated Noncash Non-cash Consideration received by the Issuers Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (dc) that is at that time outstanding, not to exceed the greater of (ix) $4.5 billion 20.0 million and (iiy) 3.01.0 % of Total Assets, at the time of the receipt of such Designated Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value);
(3) if such Asset Sale involves the disposition of Collateral, the Company or such Subsidiary has complied with the provisions of this Indenture and the Security Documents, including those described under Article X; and
(4) if such Asset Sale involves the disposition of Notes Collateral, the Net Cash Proceeds thereof shall be paid directly by the purchaser of the Collateral to the Collateral Agent for deposit into the Collateral Account, and, if any property other than cash or Eligible Cash Equivalents is included in such Net Cash Proceeds, such property shall be made subject to the Lien of this Indenture and the applicable Security Documents. Within 450 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or a the applicable Restricted Subsidiary thereof Subsidiary, as the case may be) may apply an amount equal to the Applicable Percentage of such Net Cash Proceeds (the “Applicable Proceeds”) at its option:
(1) to the extent such Net Cash Proceeds constitute proceeds from the sale of ABL Collateral, to permanently repay Debt under the Credit Agreement and, if the Obligation repaid is revolving credit Debt, to correspondingly reduce commitments with respect thereto;
(2) in the case of an Asset Sale by a Restricted Subsidiary that is not a Guarantor, to repay, prepay, defease, redeem, purchase or otherwise retire debt under (and to permanently reduce commitments with respect thereto in the Credit Facilities case of revolving borrowings) Debt of such Restricted Subsidiary or any other Indebtedness of the Restricted Subsidiaries Subsidiary that is not a Guarantor;
(3) to permanently reduce obligations under any other Debt of the Company (other than Indebtedness represented solely by a guarantee any Redeemable Capital Interests or subordinated Debt) or Debt of a Restricted Subsidiary (other than any Redeemable Capital Interests or guarantor subordinated Debt) (in each case other than Debt owed to the Company or an Affiliate of the Company);
; provided that the Company shall equally and ratably reduce obligations under the Notes pursuant to Section 3.7 through open market purchases (2) to repay the extent such purchases are at or otherwise retire unsecured Indebtedness above 100% of the Company, so long as a pro rata principal amount thereof) or by making an offer is made (in accordance with the procedures set forth below for an Offer to Purchase) to all holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid;
(4) to acquire all or substantially all of the assets of, or any Capital Interests of, another Permitted Business, if, after giving effect to any such acquisition of Capital Interests, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(5) to make a capital expenditure in or that is used or useful in a Permitted Business or to make expenditures for maintenance, repair or improvement of existing properties and assets in accordance with the provisions of this Indenture;
(6) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(7) any combination of the foregoing: provided that pending the final application of any such Net Available Cash Proceeds in accordance with clauses (1) through (7) above, the Company and its Restricted Subsidiaries may temporarily reduce Debt or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture; provided further that a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment so long as the Company or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 360 days of such commitment (an “Acceptable Commitment”), it being understood that if an Acceptable Commitment is later cancelled or terminated for any reason before such Net Cash Proceeds are applied, then all such Net Cash Proceeds not so applied shall constitute Excess Proceeds. Subject to the next two succeeding paragraphs, any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the next preceding paragraph of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within thirty days thereof, the Company will make an Offer to Purchase to all Holders of Notes (including any Permitted Additional Note Obligations), and to all holders of other unsecured Indebtedness issued Debt ranking pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to assets sales, equal to the Excess Proceeds. The offer price in any Offer to Purchase will be equal to 100% of the principal amount plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Offer to Purchase, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the Company; or
aggregate principal amount of Notes (3including any Permitted Additional Note Obligations) and other pari passu tendered into such Offer to Purchase exceeds the amount of Excess Proceeds, the Trustee will select the Notes (including any Permitted Additional Note Obligations) to invest in Productive Assets; provided that any such be purchased on a pro rata basis among each series. Upon completion of each Offer to Purchase, the amount of Excess Proceeds will be reset at zero. With respect to any Net Cash Proceeds which of an Asset Sale that constitutes a sale of Collateral, the Company (or a the Restricted Subsidiary thereof has committed that owned the assets, as the case may be) may apply those Net Cash Proceeds to invest purchase other long-term assets that constitute Collateral and become subject to the first-priority Lien of this Indenture and the Security Documents (subject to no other Liens other than Permitted Collateral Liens, and with respect to Mortgaged Property, Permitted Encumbrances (as defined in Productive Assets within 450 days of Schedule B to the applicable Asset Sale may be invested Purchase Agreement)) or otherwise use such proceeds as provided in Productive Assets within two years of such Asset Sale; provided that (1) pending the second preceding paragraph. Pending the final application of any such Net Cash Proceeds, the amount Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any Net Cash Proceeds received from a sale of Collateral shall constitute Collateral under the Security Documents and this Indenture. Any Net Cash Proceeds received from a sale of Notes Collateral shall constitute Collateral under the Security Documents and this Indenture and be deposited in the Collateral Account and released therefrom in accordance with applicable provisions of Articles X and XI. Notwithstanding the foregoing, the Company may use up to $75.0 million of the proceeds from the sale of Notes Collateral that is real property in accordance with the provisions of clause (xv) of the second paragraph of Section 4.7. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such Applicable Proceeds pursuant to thiscompliance.
Appears in 2 contracts
Sources: Indenture (Ryerson Holding Corp), Indenture (Ryerson International Material Management Services, Inc.)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(32) at least 75% of the consideration from such received in the Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or readily marketable securitiesEquivalents. For purposes of this Section 4.11clause (2) above, each the amount of the following shall be deemed to be cash:
(ai) any liabilities other than contingent liabilities (as shown on the Company’s or such the applicable Restricted Subsidiary’s most recent balance sheetsheet or in the notes thereto) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or the Guarantees) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases and from which the Company or such and all Restricted Subsidiary from further liability;
Subsidiaries have been validly released by the applicable creditor(s) in writing, (bii) any securities, notes or other obligations debt securities received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof cash (to the extent of the cashcash received) within 90 days following the closing of such Asset Sale, Cash Equivalents (iii) any assets described in clause (2) or readily marketable securities received in that conversion);
(c3) Productive Assets; and
below, and (div) any Designated Noncash Non-cash Consideration received by the Issuers Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valuevalue (as determined in good faith by the Board of Directors of the Company), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (div) that is at that time outstanding, not to exceed the greater of (ix) $4.5 billion 75.0 million and (iiy) 3.0an amount equal to 2.0% of Total Assets, Assets of the Company on the date on which such Designated Non-cash Consideration is received (with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be deemed to be cash for purposes of this paragraph and for no other purpose. Within 450 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a such Restricted Subsidiary thereof Subsidiary, as the case may be, may apply an amount equal to the Applicable Percentage of such those Net Proceeds (the “Applicable Proceeds”) at its option:
(1) (i) to repay reduce Obligations under Secured Indebtedness of the Company or otherwise retire debt any Restricted Subsidiary, (ii) to reduce Obligations under Indebtedness of a Restricted Subsidiary that is not a Guarantor (other than Indebtedness owed to the Company or another Restricted Subsidiary), (iii) to reduce Obligations under any Indebtedness outstanding under the Credit Facilities (other than Subordinated Indebtedness) or any other (iv) to reduce Indebtedness of the Restricted Subsidiaries Company that ranks pari passu in right of payment with the Notes or Indebtedness of a Guarantor that ranks pari passu in right of payment with such Guarantor’s Guarantee of the Notes (provided that if the Company shall so reduce Obligations under Indebtedness that ranks pari passu in right of payment with the Notes or the Guarantees (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary specified in clauses (i) through (iii) above), it will equally and ratably reduce Obligations under the Notes through open-market purchases (to the extent such purchases are at or above 100% of the Company);
principal amount thereof) or by causing the Company to make an Asset Sale Offer (2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth below in the next paragraph this Section 4.10) to all holders Holders of Notes to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, on the pro rata principal amount of Notes), in each case other unsecured than Indebtedness issued by the Company; orowed to Parent or any Restricted Subsidiary;
(32) to invest an investment in Productive Assets(A) any one or more businesses; provided that such investment in any such amount business is in the form of Net Proceeds which the acquisition of Capital Stock and results in the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days owning an amount of the applicable Asset Sale may be invested Capital Stock of such business such that such business constitutes a Restricted Subsidiary, (B) capital expenditures or (C) other non-current assets, in Productive Assets within two years each of (A), (B) and (C), used or useful in a Permitted Business;
(3) to an investment in (A) any one or more businesses; provided that such investment in any business is in the form of the acquisition of Capital Stock and results in the Company or a Restricted Subsidiary owning an amount of the Capital Stock of such business such that such business constitutes a Restricted Subsidiary, (B) properties or (C) assets that, in each of (A), (B) and (C), replace the businesses, properties and assets that are the subject of such Asset Sale; and or
(4) to make any Seed Capital Investment. Any Net Proceeds from an Asset Sale not applied or invested in accordance with the preceding paragraph within 365 days from the date of the receipt of such Net Proceeds shall constitute “Excess Proceeds”; provided that if during such 365-day period the Company or a Restricted Subsidiary enters into a definitive binding agreement committing it to apply such Net Proceeds in accordance with the requirements of clause (12) pending or (3) of the immediately preceding paragraph after such 365th day, such 365-day period will be extended with respect to the amount of Net Proceeds so committed for a period not to exceed 180 days until such Net Proceeds are required to be applied in accordance with such agreement (or, if earlier, until termination of such agreement). When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company or the applicable Restricted Subsidiary will make an offer (an “Asset Sale Offer”) to all Holders of Notes and Indebtedness that ranks pari passu with the Notes and contains provisions similar to those set forth in this Indenture with respect to offers to purchase with the proceeds of sales of assets to purchase, on a pro rata basis, the maximum principal amount of Notes and such other Indebtedness that ranks pari passu with the Notes that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and will be payable in cash. Pending the final application of any Net Proceeds, the Company or the applicable Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or the applicable Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Registrar will 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. The Company or the applicable Restricted Subsidiary will comply with the requirements of Rule 14e-1 under the Exchange Act and any such Applicable Proceeds other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to thisan Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company or the applicable Restricted Subsidiary will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such conflict.
Appears in 2 contracts
Sources: Indenture (Nuveen Investments Holdings, Inc.), Indenture (Nuveen Investments Holdings, Inc.)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an make any Asset Sale unless:
unless (1) the a)the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liabilityliabilities, contingent or otherwise) received at the time of such Asset Sale at least equal to the Fair Market Value of the assets or other property sold or disposed of in the Asset Sale, as such Fair Market Value may be determined (and shall be determined, to 135 the extent such Asset Sale or any series of related Asset Sales involves aggregate consideration in excess of $1.0 million) in good faith by the Board of Directors, whose determination shall be conclusive (including as to the value of all noncash consideration), and (ii) at least 75% of such consideration (excluding, in the case of an Asset Sale of assets, any consideration by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, which are not Indebtedness) consists of either cash or Cash Equivalents. For purposes of this Section10.14, "cash" shall include (1) the amount of any Indebtedness (other than any Indebtedness that is by its terms expressly subordinated in right of payment to the Notes) of the Company or such Restricted Subsidiary that is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant or other property in such Asset Sale or another Person (and excluding any liabilities that are incurred in connection with or in anticipation of such Asset Sale), but only to the extent that such assumption is effected on a customary novation agreement that releases basis under which there is no further recourse to the Company or any of the Restricted Subsidiaries with respect to such liabilities, (2) Indebtedness of a Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Company and each other Restricted Subsidiary is unconditionally released from further liability;
any Guarantee of such Indebtedness in connection with such Asset Sale, (b3) 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 recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof cash and (to the extent 4) consideration consisting of Indebtedness of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) than Indebtedness that is at that time outstandingby its terms expressly subordinated in right of payment to the Notes), not to exceed the greater of (i) $4.5 billion extent such Indebtedness is cancelled and (ii) 3.0% of Total Assetsthere is no further recourse to the Company or any such Restricted Subsidiary, with as 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 valuecase may be, under such Indebtedness. Within 450 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may elect to apply an amount equal to the Applicable Percentage Net Proceeds from such Asset Sale to (a)permanently reduce any Senior Debt of the Company or Indebtedness (other than Preferred Stock) of a Restricted Subsidiary and/or (b)make an investment in, or acquire assets related to, a Related Business. Pending the final application of any such amount, the Company may temporarily reduce Senior Debt or Indebtedness of a Restricted Subsidiary or temporarily invest such Net Proceeds in any manner permitted by this Indenture. Any portion of such amount not applied or invested as provided in the first sentence of this paragraph within 365 days of such Asset Sale will be deemed to constitute "EXCESS PROCEEDS." Each date on which the aggregate amount of Excess Proceeds in respect of which an Asset Sale Offer has not been made exceeds $10.0 million shall be deemed an "ASSET SALE OFFER TRIGGER DATE." As soon as practicable, but in no event later than 20 Business Days after each Asset Sale Offer Trigger Date, the Company shall commence an offer (the “Applicable Proceeds”) at its option:
(1an "ASSET SALE OFFER") to repay or otherwise retire debt under purchase the Credit Facilities or any maximum principal amount of Notes and other Indebtedness of the Restricted Subsidiaries Company that ranks PARI PASSU in right of payment with the Notes (to the extent required by the instrument governing such other Indebtedness) that may be purchased out of the Excess Proceeds. Any Notes to be purchased pursuant to an Asset Sale Offer shall, and any other Indebtedness to be purchased pursuant to an Asset Sale Offer may, be purchased PRO RATA based on the aggregate principal amount of Notes and all such other Indebtedness outstanding, and all such Notes shall be purchased at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the date of purchase. To the extent that any Excess Proceeds remain after completion of an Asset Sale Offer, the Company may use the remaining amount for general corporate purposes otherwise permitted by this Indenture. In the event that the Company is prohibited under the terms of any agreement governing outstanding Senior Debt of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary from repurchasing Notes with Excess Proceeds pursuant to an Asset Sale Offer as set forth in this paragraph, the Company shall promptly use all Excess Proceeds to permanently reduce such outstanding Senior Debt of the Company);
(2) to repay . Upon the consummation of such permanent reduction, or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Offer, the amount of any such Applicable Excess Proceeds pursuant shall be deemed to thisbe reset to zero.
Appears in 2 contracts
Sources: Indenture (Leiner Health Products Inc), Indenture (Leiner Health Products Inc)
Limitation on Asset Sales. The Company shall notwill not engage in, and shall will not permit any Subsidiary to engage in, any Asset Sale unless (a) except in the case of its Restricted Subsidiaries to, consummate (i) an Asset Sale unless:
resulting from the requisition of title to, seizure or forfeiture of any Property or any actual or constructive total loss or an agreed or compromised total loss or (1ii) a Bargain Purchase Contract, the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets Property subject to such Asset Sale; (b) except in the case of an Asset Sale described in subclauses (i) or Equity Interests issued or sold or otherwise disposed of;
(2ii) such fair market value is determined by the Board of Directors of the Company; and
clause (3) a), at least 75% of such consideration consists of Cash Proceeds or the consideration from such Asset Sale, together with all assumption of Indebtedness (other Asset Sales since the Issue Date on a cumulative basis (including by way than Subordinated Indebtedness) of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is relating to the Property that was the subject of such Asset Sale and the release of the Company or such Subsidiary from Indebtedness); and (c) the Company delivers to the Trustee an Officers' Certificate, which Officers' Certificate shall be conclusive, certifying that such Asset Sale complies with clauses (a) and (b); provided, however, that the requirements set forth in clause (b) shall not apply to an Asset Sale in which the Company exchanges assets for assets that constitute Replacement Assets. The Company or such Subsidiary, as the case may be, may apply the Net Available Proceeds from each Asset Sale (x) to the acquisition of one or more Replacement Assets, or (y) to repurchase or repay Senior Debt (other than Indebtedness owed to the Company or an Affiliate of the Company) (with a permanent reduction of availability in the form case of cashrevolving credit borrowings); provided, Cash Equivalents however, that such acquisition or readily marketable securities. For purposes of this Section 4.11, each such repurchase or repayment shall be made within 365 days after the consummation of the relevant Asset Sale. The following shall amounts will be deemed to be cash:
cash for purposes of this provision: (ai) any liabilities of the Company or any Subsidiary (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheet) of sheet or in the Company or any Restricted Subsidiary thereof (notes thereto), other than contingent liabilities and liabilities that are by their terms are subordinated to the Notes) Debentures or the applicable Subsidiary Guarantee that are assumed by the transferee of any such assets pursuant to Property as a customary novation agreement that releases result of which the Company or and its Subsidiaries are no longer obligated with respect to such Restricted Subsidiary from further liability;
liabilities and (bii) any securities, notes Indebtedness or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or such Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof cash (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(ccash received) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers or any Restricted Subsidiary in within 120 days of such Asset Sale. Any Net Available Proceeds from any Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant that are not used to this clause (d) that is at that time outstanding, not acquire Replacement Assets or to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, 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. Within 450 repurchase or repay Senior Debt within 365 days after consummation of the receipt relevant Asset Sale constitute "Excess Proceeds." When the aggregate amount of any Net Excess Proceeds from an Asset Saleexceeds $10 million, the Company shall, or a Restricted Subsidiary thereof may apply an amount equal to at any time after receipt of Excess Proceeds, the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) Company may, at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as make a pro rata offer is made to all holders of Debentures and other Indebtedness (excluding the Company's 9.375% Senior Debentures due 2007 and its 10% Senior Notes due 2009; provided that the Company may make an offer to purchase such notes in accordance with their terms) that ranks by its terms equally in right of payment with the Debentures and the terms of which contain substantially similar requirements with respect to the application of net proceeds from asset sales as are contained in this Indenture (an "Asset Sale Offer") to purchase on a pro rata basis the maximum Principal Amount at Maturity of the Debentures and other such Indebtedness in integral multiples of $1,000 that may be purchased out of the Excess Proceeds, at a price in cash equal to (a) the Issue Price plus accrued Original Issue Discount (or, if the Debentures have been converted pursuant to Article Sixteen hereof, the Restated Principal Amount, plus accrued and unpaid interest) through the purchase date, in the case of the Debentures, and (b) 100% of the outstanding principal amount thereof plus accrued and unpaid interest, if any, to the purchase date, in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years this Indenture. Upon completion of such Asset Sale; provided that (1) pending the final application of Sale Offer, the amount of Excess Proceeds shall be reset to zero and the Company may use any remaining amount for general corporate purposes. Within five Business Days after the Company is obligated to make an Asset Sale Offer, the Company will send a written notice to Holders of Debentures, accompanied by such Applicable Proceeds pursuant information as the Company in good faith believes will enable Holders to thismake an informed decision with respect to the Asset Sale Offer. The Company will comply with any applicable tender offer rules (including, without limitation, any applicable requirements of Rule 14e-1 under the Exchange Act) in the event that an Asset Sale Offer is required under the circumstances described herein.
Appears in 2 contracts
Sources: Third Supplemental Indenture (Pride International Inc), Third Supplemental Indenture (Pride International Inc)
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such the Restricted Subsidiary Subsidiary, as the case may be) receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of such the Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value the Fair Market Value is determined by the Company and evidenced by an Officers' Certificate delivered to the Trustee; provided, however, that with respect to any Asset Sale or series of related Asset Sales involving aggregate consideration in excess of $15,000,000, such determination shall be made by the Company's Board of Directors and evidenced by a resolution of the CompanyBoard of Directors; and
(3) at least 75% (50% in the case of Specified Assets) of the consideration from such received in the Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or readily marketable securitiesEquivalents. For purposes of this Section 4.11provision, each of the following shall be deemed to be cash:
(aA) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s 's most recent consolidated balance sheet) sheet or in the Notes thereto, of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation an agreement that releases the Company or such Restricted Subsidiary from further liability;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or such Restricted Subsidiary into cashcash within 90 days of their receipt, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(cC) Productive Assetsany Capital Stock or assets of the kind referred to in Section 4.12(b)(3) or (4); and
(dD) any Designated Noncash Consideration received accounts receivable of a business, retained by the Issuers Company or any one of its Restricted Subsidiary in Subsidiaries following the sale of such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause business; provided that such accounts receivable (dx) that is at that time outstanding, are not to exceed the greater of (i) $4.5 billion past due more than 60 days and (iiy) 3.0% do not have a payment date greater than 90 days from the date of Total Assets, 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. invoice creating such accounts receivable.
(b) Within 450 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a any Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such those Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under outstanding Senior Debt of the Credit Facilities Company or any other Indebtedness of the Restricted Subsidiaries Subsidiary of the Company (including Indebtedness or other than obligations under any Credit Facility), and thereafter, repay any other outstanding Indebtedness represented solely by a guarantee of a the Company or any Restricted Subsidiary of the Company), and, in each case, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to repay make one or otherwise retire unsecured Indebtedness of the Company, so long as more capital expenditures to be used in a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; orPermitted Business;
(3) to acquire all or substantially all of the assets of, or a majority of the Capital Stock of, another Permitted Business; and
(4) to acquire other assets that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, the Company or any Restricted Subsidiary of the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in Productive Assets; any manner that is not prohibited by this Indenture.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided that any such in Section 4.12(b) above shall constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10,000,000, the Company shall make an offer (an "Asset Sale Offer") to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes 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. The offer price in any Asset Sale Offer shall be equal to 100% of principal amount plus accrued and unpaid interest and Additional Interest, if any, to the date of purchase, and shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and 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 in proportion to the respective principal amounts (or accreted values, as applicable) of the Notes and such pari passu Indebtedness then outstanding. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset to zero.
(d) Within 15 Business Days after the Company is obligated to make an Asset Sale Offer as described in Section 4.12(c), the Company shall send a written notice, by first-class mail, to the Holders of Notes with a copy to the Trustee, accompanied by such information regarding the Company and the Guarantors as the Company in good faith believes shall enable such Holders to make an informed decision with respect to such Asset Sale Offer. Such notice shall state, among other things, the purchase price and the purchase date (the "Purchase Date"), which shall be, subject to any contrary requirements of applicable law, a Business Day no earlier than 20 Business Days nor later than 60 Business Days from the date such notice is mailed.
(e) Not later than the date upon which written notice of an Asset Sale Offer is delivered to the Holders of the Notes as provided in Section 4.12(d), the Company shall deliver to the Trustee an Officers' Certificate as to (1) the amount of the Asset Sale Offer (the "Offer Amount"), (2) the allocation of the Net Proceeds from the Asset Sale pursuant to which such Asset Sale Offer is being made and (3) the compliance of such allocation with the provisions of this Section 4.12. On or before the Purchase Date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company or a Restricted wholly owned Subsidiary thereof has committed to invest is the Paying Agent, shall segregate and hold in Productive Assets within 450 days trust) in Cash Equivalents (other than in those enumerated in clause (2) of the applicable Asset Sale may definition of "Cash Equivalents"), maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by the opening of business, an amount equal to the Offer Amount to be invested held for payment in Productive Assets within two years accordance with the provisions of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thisthis Section 4.
Appears in 2 contracts
Limitation on Asset Sales. (a) The Company shall not, and ------------------------- shall not permit any of its Restricted Subsidiaries Subsidiaries, directly or indirectly, to, consummate an any Asset Sale Sale, unless:
(1i) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of for such Asset Sale at least equal to the fair market value Fair Market Value (as evidenced by a Board Resolution delivered to the Trustee) of the Property or assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3ii) at least 75% 75 percent of the consideration from received in respect of such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Sale by the Company or such Restricted Subsidiary is in Subsidiary, as the form case may be, for such Property or assets consists of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities Cash Proceeds and/or Telecommunications Assets; (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetb) shares of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee publicly-traded Voting Stock of any such assets pursuant to a customary novation agreement that releases Person engaged in the Telecommunications Business in the United States; or (c) the assumption of Indebtedness of the Company or such Restricted Subsidiary (other than Indebtedness that is subordinated to the Notes) and the release of the Company or the Restricted Subsidiary, as the case may be, from further liability;all liability on the Indebtedness assumed; and
(iii) the Company or such Restricted Subsidiary, as the case may be, uses the Net Cash Proceeds from such Asset Sale in the manner set forth in Section 4.08(b) hereof.
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 360 calendar days after the receipt closing of any Net Proceeds from an Asset Sale, the Company or a such Restricted Subsidiary thereof Subsidiary, as the case may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) be, may, at its option:
(1i) reinvest an amount equal to repay or otherwise retire debt under the Credit Facilities Net Cash Proceeds, or any other portion thereof, from such Asset Sale in Telecommunications Assets or in Capital Stock of any Person engaged in the Telecommunications Business; and/or
(ii) apply an amount equal to such Net Cash Proceeds, or remaining Net Cash Proceeds, to the permanent reduction of Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of to a Restricted Subsidiary of the Company) that is senior to or pari passu with the Notes or to the permanent ---- ----- reduction of Indebtedness or Preferred Stock of any Restricted Subsidiary of the Company (other than Indebtedness to, or Preferred Stock owned by, the Company or another Restricted Subsidiary of the Company);. Net Cash Proceeds from any Asset Sale that are not applied pursuant to clause (i) or (ii) above within 360 calendar days of the closing of such Asset Sale shall constitute "Excess Proceeds."
(2c) If at any time the aggregate amount of Excess Proceeds calculated as of such date exceeds $5 million, the Company shall use the then-existing Excess Proceeds to repay make an offer, as described in Section 4.08(d) hereof (an "Asset Sale Offer"), to purchase from all Holders, on a pro rata basis, Notes in an aggregate principal amount equal to the maximum principal amount that may be purchased out of the then-existing Excess Proceeds, at a purchase price (the "Asset Sale Purchase Price") in cash equal to 100 percent of the principal amount of such Notes, plus accrued and unpaid interest, if any, to the Asset Sale Payment Date.
(d) Within 30 calendar days of the date the amount of Excess Proceeds exceeds $5 million, the Company, or otherwise retire unsecured Indebtedness the Trustee at the request and expense of the Company, so long shall send to each Holder by first class mail, postage prepaid, a notice prepared by the Company stating:
(i) that an Asset Sale Offer is being made pursuant to this Section 4.08, and that all Notes that are timely tendered will be accepted for payment, subject to proration in the event the amount of Excess Proceeds is less than the aggregate Asset Sale Purchase Price of all Notes timely tendered pursuant to the Asset Sale Offer;
(ii) the Asset Sale Purchase Price, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Payment Date"), which date shall be a date no earlier than 30 calendar days nor later than 40 calendar days subsequent to the date such notice is mailed;
(iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest;
(iv) that, unless the Company defaults in the payment of the Asset Sale Purchase Price with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Payment Date;
(v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice, prior to the close of business on the third Business Day preceding the Asset Sale Payment Date;
(vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Payment Date, a telegram, telex, facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer;
(vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof;
(viii) that any Holder whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof; and
(ix) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.08.
(e) If the aggregate Asset Sale Purchase Price of the Notes surrendered by Holders exceeds the amount of Excess Proceeds as indicated in the notice required by Section 4.08(d) hereof, the Trustee shall select the Notes to be purchased on a pro rata offer is made basis based on the principal amount of the Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in accordance denominations of $1,000 or integral multiples thereof shall be purchased.
(f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.08(e) hereof; (ii) irrevocably deposit with the procedures set forth Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the next paragraph Asset Sale Purchase Price in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to all holders be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. The Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder of other unsecured Indebtedness issued by Notes or portions thereof so accepted for payment, payment in an amount equal to the Company; orAsset Sale Purchase Price for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Payment Date.
(3g) Upon surrender and cancellation of a Note that is purchased in part, the Company shall promptly issue and the Trustee shall authenticate and deliver to invest the surrendering Holder of such Note a new Note equal in Productive Assetsprincipal amount to the unpurchased portion of such surrendered Note; provided that any each such new Note shall be in a principal amount of Net $1,000 or an integral multiple thereof.
(h) Upon completion of an Asset Sale Offer (including payment of the Asset Sale Purchase Price for accepted Notes), any surplus Excess Proceeds which that were the subject of such offer shall cease to be Excess Proceeds, and the Company may then use such amounts for general corporate purposes.
(i) The Company shall comply with the requirements of Section 14(e) under the Exchange Act and any other securities laws or a Restricted Subsidiary thereof has committed regulations, to invest the extent such laws and regulations are applicable, in Productive Assets within 450 days connection with the purchase of the applicable Notes pursuant to an Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thisOffer.
Appears in 2 contracts
Sources: Indenture (McLeodusa Inc), Indenture (McLeodusa Inc)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an any Asset Sale unless:
unless (1i) the Company or such Restricted the applicable Subsidiary receives consideration at the time of such Asset Sale (the "Asset Sale Closing Date") at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
of or issued (2) such fair market value is as determined in good faith by the Board of Directors of the Company; and
(3Company or, with respect to assets having a Fair Market Value in excess of $5 million, an Independent Financial Advisor) and at least 7590% of the fair market value (as so determined) of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) so received by the Company or such Restricted Subsidiary is in the form of cash; provided, Cash Equivalents or readily marketable securities. For purposes however, that the amount of this Section 4.11, each of the following shall be deemed to be cash:
(aA) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof its Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated owed to the NotesCompany, any of its Subsidiaries or any of their Affiliates) that are assumed by the transferee of in any such assets transaction (as shown on the Company's or such Subsidiary's most recent balance sheet) pursuant to a customary novation agreement that irrevocably releases the Company or such Restricted Subsidiary and its Subsidiaries from further liability;
liability and (bB) any securities, notes or other obligations Cash Equivalents received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the recipient thereof Company or such Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (cash shall both be deemed to the extent be cash for purposes of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assetsthis Section 4.18; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% the Net Cash Proceeds received by the Company or such Subsidiary from such Asset Sale are applied in compliance with Section 4.18(b) hereof.
(i) If the Company or any of Total Assets, 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 its Subsidiaries engages in value. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company or such Subsidiary shall apply the Net Cash Proceeds thereof in the following order:
(A) first, toward the payment of the Indebtedness (other than Indebtedness under the Senior Secured Credit Facility or the Senior Subordinated Notes) which is senior in right of payment to the payment of the Senior Subordinated Notes; and
(B) second, toward the payment of the Indebtedness under the Senior Secured Credit Facility; provided, however, that any such payment shall result in a Restricted Subsidiary thereof may apply permanent reduction of the Lender's commitment thereunder and a corresponding permanent reduction in the maximum amount of Indebtedness permitted under Section 4.13(b)(i).
(ii) All Net Cash Proceeds not applied pursuant to Section 4.18(b)(i) ("Excess Proceeds") shall be delivered to the Trustee not later than 90 days after the applicable Asset Sale Closing Date (or 30 days after such later date it is first deemed to be an Asset Sale), and shall be applied to the purchase of Senior Subordinated Notes pursuant to a Net Proceeds Purchase as set forth below. To the extent that any such Excess Proceeds remain after the application of the Net Cash Proceeds described in Section 4.18(b)(i), the Company shall purchase Senior Subordinated Notes as described in Section 4.18(c) (a "Net Proceeds Purchase") at a price equal to 101% of the aggregate principal amount thereof, plus accrued interest to the date of purchase, which shall in the aggregate equal the amount of Excess Proceeds required by this Section 4.18 to be made available to purchase Senior Subordinated Notes in a Net Proceeds Purchase.
(c) Notice of a Net Proceeds Purchase pursuant to this Section 4.18 shall be mailed, by first class mail, by the Company not more than 91 days after the relevant Asset Sale Closing Date to all Holders at their last registered addresses, with a copy to the Trustee. The notice shall specify a Redemption Date chosen by the Company in compliance with the first sentence of Section 3.03 and shall contain all instructions and materials necessary to enable such Holders to tender Senior Subordinated Notes pursuant to the Net Proceeds Purchase and shall state the terms required to be stated in a notice of redemption under Section 3.03. On or before the Redemption Date, the Company shall have deposited with the Paying Agent (to the extent not already held by the Paying Agent) U.S. Legal Tender equal to the Excess Proceeds of the Asset Sale. Following the Redemption Date, the Paying Agent shall promptly mail to the Holders of Senior Subordinated Notes payment in an amount equal to the Applicable Percentage purchase price. The Company will publicly announce the results of such the Net Proceeds (Purchase on or as soon as practicable after the “Applicable Proceeds”) at its option:Redemption Date. For purposes of this Section 4.18, the Trustee shall act as the Paying Agent. Notwithstanding the foregoing, the Company need not initiate a purchase offer under this Section 4.18 if the amount on deposit with the Trustee is less than $1,000,000, but shall instead hold such lesser amount in trust in an interest bearing account until the earlier of the next Redemption Date under this Section 4.18 or the date upon which the Senior Subordinated Notes become due and payable. The Company, however, may not credit any such amounts held by the Trustee against any other provision of this Indenture.
(1d) to repay If at any time any non-cash consideration received by the Company or any Subsidiary in connection with any Asset Sale is converted into or sold or otherwise retire debt under the Credit Facilities disposed of for cash, or any if cash dividends or interest or other Indebtedness cash payments are received with respect thereto, then such cash shall constitute Net Cash Proceeds for purposes of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made this covenant and shall be applied in accordance with Section 4.18(b) as if received in an Asset Sale occurring on the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that date any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thiscash is received.
Appears in 2 contracts
Sources: Indenture (Trism Inc /De/), Indenture (Trism Inc /De/)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or such a Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value value, determined as of the date of the agreement with respect thereto, of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3ii) at least 75% of the aggregate consideration from such received by the Company and its Restricted Subsidiaries in the Asset Sale, together with Sale and all other Asset Sales since the Issue Date Measurement Date, on a cumulative basis (including by way of relief frombasis, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or readily marketable securitiesEquivalents. For purposes of this Section 4.11provision, each of the following shall 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) , of the Company or any such Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation an agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(b2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cashare, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(c3) Productive Assetsany stock or assets of the kind referred to in clause (ii), (iii) or (v) of Section 4.10(b); and
(d4) any Designated Noncash Non-cash Consideration received by the Issuers Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-cash Consideration received since the Measurement Date pursuant to this clause (d4) that is at that the time outstandinghas not been converted to cash, not to exceed the greater of (ix) $4.5 billion 85.0 million and (iiy) 3.03.5% of Total AssetsConsolidated Net Tangible Assets at the time of the receipt of such Designated Non-cash Consideration, with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value. .
(b) Within 450 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any Restricted Subsidiary may apply those Net Proceeds at its option to any combination of the following:
(i) to repay, repurchase or redeem Senior Debt;
(ii) to acquire all or substantially all of the properties or assets of a Person primarily engaged in a Permitted Business;
(iii) to acquire Voting Stock of a Person primarily engaged in a Permitted Business, if such Person is, or after giving effect to any such acquisition, such Person becomes, a Restricted Subsidiary;
(iv) to make capital expenditures in respect of a Permitted Business; or
(v) to acquire other properties or assets that are used or useful in a Permitted Business.
(c) The acquisition of stock or assets, or making of a capital expenditure, pursuant to clauses (ii), (iii), (iv) or (v) of Section 4.10(b) shall be deemed to be satisfied if an agreement committing to make the acquisitions or expenditures referred to therein is entered into by the Company or any Restricted Subsidiary thereof may apply an amount equal to within the Applicable Percentage of time period specified in Section 4.10(b) and such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made are subsequently applied in accordance with such agreement within six months following the procedures set forth date such agreement is entered into.
(d) Pending the final application of any Net Proceeds, the Company or any Restricted Subsidiary may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(b) will constitute “Excess Proceeds.”
(e) On the next paragraph 366th day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $25.0 million, the Company will make an Asset Sale Offer to all Holders (with a copy to the Trustee), and to all holders of other unsecured Pari Passu Indebtedness issued by containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the Company; or
(3) proceeds of sales of assets, to invest in Productive Assets; provided that any such 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, if any, thereon to the Settlement Date, 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 Settlement Date, and will be payable in cash. The Company may satisfy the foregoing obligations with respect to any Net Proceeds which from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the relevant 365 days (or such longer period provided above). If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or a any Restricted Subsidiary thereof has committed 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 invest be purchased on a pro rata basis as set forth in Productive Assets within 450 days Section 3.08(c)(8). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.10 by virtue of such conflict.
(g) The provisions under this Indenture relating to the Company’s obligation to make an offer to repurchase the Notes as a result of an Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending waived or modified with the final application written consent of the Holders of a majority in principal amount of any such Applicable Proceeds pursuant to thisthe outstanding Notes.
Appears in 2 contracts
Sources: Indenture (USA Compression Partners, LP), Indenture (USA Compression Partners, LP)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such the Restricted Subsidiary Subsidiary, as the case may be) receives consideration at (including by way of relief from, or any Person assuming responsibilities for, any liabilities, contingent or otherwise), determined on the time date of contractually agreeing to such Asset Sale Sale, at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(32) at least 75% of the aggregate consideration from received by the Company and its Restricted Subsidiaries in the Asset Sale (determined on the date of contractually agreeing to such Asset Sale, together with ) and all other Asset Sales since the Issue Date date of this indenture, on a cumulative basis (including by way of relief frombasis, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or readily marketable securitiesEquivalents. For purposes of this Section 4.11provision, each of the following shall will be deemed to be cash:
(a) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) , of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cashare, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (the Asset Sale, converted by the Company or such Subsidiary into cash, to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);; and
(c) Productive Assets; and
(d) any Designated Noncash Consideration received accounts receivable of a business retained by the Issuers company or any of its Restricted Subsidiary in Subsidiaries, as the case may be, following the sale of such Asset Sale having an aggregate fair market valuebusiness, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) provided that is at that time outstanding, not to exceed the greater of such accounts receivable (i) $4.5 billion are not past due more than 90 days and (ii) 3.0% do not have a payment date greater than 120 days from the date of Total Assets, 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 valueinvoices creating such accounts receivable. Within 450 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or a the applicable Restricted Subsidiary thereof Subsidiary, as the case may be) may apply those Net Proceeds at its option to any combination of the following:
(I) to prepay, repay, redeem, defease or repurchase Senior Debt, including the notes;
(II) to invest in or acquire Additional Assets; or
(III) to make capital expenditures in respect of the Company’s or its Restricted Subsidiaries’ Oil and Gas Business. The requirement of clause (II) or (III) of the preceding paragraph shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an amount equal to Affiliate of the Applicable Percentage of Company within the time period specified in the preceding paragraph and such Net Proceeds (are subsequently applied in accordance with such contract within six months following the “Applicable date such agreement is entered into. Pending the final application of any Net Proceeds”) at its option:
(1) to repay or otherwise retire debt under , the Credit Facilities Company or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay Company may temporarily reduce Indebtedness or otherwise retire unsecured Indebtedness of invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute “Excess Proceeds.” On the 366th day after an Asset Sale (or, at the Company’s option, so long as a pro rata offer is made in accordance with any earlier date), if the procedures set forth in aggregate amount of Excess Proceeds then exceeds $40.0 million, the next paragraph Company will make an Asset Sale Offer to all Holders of Notes, and to all holders of other unsecured Pari Passu Indebtedness issued then outstanding to purchase, on a pro rata basis, the maximum principal amount of Notes and such 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 principal amount plus accrued and unpaid interest and Additional Interest, if any, thereon to the Settlement Date, subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the Settlement Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated for purchase of the Notes, the Trustee will select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company; or
(3) to invest Trustee so that only Notes in Productive Assets; provided denominations of $2,000, or integral multiples of $1,000 in excess of $2,000, shall be purchased). Upon surrender of a Note that any such amount of Net Proceeds which is repurchased in part, the Company or a Restricted Subsidiary thereof has committed to invest Issuers shall issue in Productive Assets within 450 days the name of the applicable Holder and the Trustee shall authenticate for such Holder at the expense of the Issuers a new Note equal in principal amount to the non-repurchased portion of the Note surrendered. Upon completion of each Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any such Applicable Proceeds other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to thisan Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such compliance.
Appears in 2 contracts
Sources: Indenture (Linn Energy, LLC), Indenture (Linn Energy, LLC)
Limitation on Asset Sales. For purposes of 6% Notes, Section 4.12 of the Indenture is hereby replaced and superseded by the following covenant and the following covenant shall apply to the 6% Notes: The Company shall and the Subsidiary Guarantors will not, and shall the Company and the Subsidiary Guarantors will not permit any of its or their respective Restricted Subsidiaries to, consummate an any Asset Sale Sale, unless:
(1) the Company consideration received by the Company, the Subsidiary Guarantor or such Restricted Subsidiary receives consideration at the time of such Asset Sale is at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is of as determined by the Board of Directors of the Company, in good faith; and
(32) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form consists of cash, Cash Equivalents and/or real estate assets; provided that, with respect to the sale of one or readily marketable securities. For more real estate properties, up to 75% of the consideration may consist of indebtedness of the purchaser of such real estate properties so long as such Indebtedness is secured by a first priority Lien on the real estate property or properties sold; and provided that, for purposes of this Section 4.11, each of clause (ii) the following shall be deemed to be cashamount of:
(aA) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof Indebtedness (other than contingent liabilities and liabilities that are by their terms Indebtedness subordinated in right of payment to the Notesnotes or a Subsidiary Guarantee) that are is required to be repaid or assumed (and is either repaid or assumed by the transferee of any the related assets) by virtue of such Asset Sale and which is secured by a Lien on the property or assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;sold; and
(bB) any securities, notes securities or other obligations received by the Company Company, any Subsidiary Guarantor or any such Restricted Subsidiary from such transferee that are immediately converted by the recipient thereof Company, the Subsidiary Guarantor or such Restricted Subsidiary into cashcash (or as to which the Company, Cash Equivalents any Subsidiary Guarantor or readily marketable securities within 180 days after receipt thereof (such Restricted Subsidiary has received at or prior to the extent consummation of the Asset Sale a commitment (which may be subject to customary conditions) from a nationally recognized investment, merchant or commercial bank to convert into cash within 90 days of the consummation of such Asset Sale and which are thereafter actually converted into cash within such 90-day period) will be deemed to be cash, . In the event that the aggregate Net Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration Proceeds received by the Issuers Company, any Subsidiary Guarantors or such Restricted Subsidiaries from one or more Asset Sales occurring on or after the Closing Date in any Restricted Subsidiary in period of 12 consecutive months (such 12 consecutive month period, an “Asset Sale Period”) exceed 5% of Total Assets (determined as of the date closest to the commencement of such Asset Sale having an aggregate fair market value, taken together Period for which a consolidated balance sheet of the Company and its Restricted Subsidiaries has been filed with all other Designated Noncash Consideration received the Securities and Exchange Commission or provided to the trustee pursuant to this clause (d) Section 4.2 of the Indenture), then during the period commencing 180 days prior to the commencement of such Asset Sale Period and running through the date that is at that time outstanding, not to exceed 12 months after the greater of (i) $4.5 billion and (ii) 3.0date Net Cash Proceeds so received exceeded 5% of Total Assets, an amount equal to the Net Cash Proceeds received during such Asset Sale Period must have been or must be:
(1) invested in or committed to be invested in, pursuant to a binding commitment subject only to reasonable, customary closing conditions, and providing an amount equal to the Net Cash Proceeds are, in fact, so invested, within an additional 180 days, (x) fixed assets and property (other than notes, bonds, obligations and securities) which in the good faith reasonable judgment of the Board of the Company will immediately constitute or be part of a Related Business of the Company, Subsidiary Guarantor or such Restricted Subsidiary (if it continues to be a Restricted Subsidiary) immediately following such transaction, (y) Permitted Mortgage Investments, or (z) a controlling interest in the Capital Stock of an entity engaged in a Related Business; provided that concurrently with an Investment specified in clause (z), such entity becomes a Restricted Subsidiary; or
(2) used to repay and permanently reduce Indebtedness outstanding under the Credit Facility (including that, in the case of a revolver or similar arrangement, such commitment is permanently reduced by such amount). Pending the application of any such Net Cash Proceeds as described above, the Company may invest such Net Cash Proceeds in any manner that is not prohibited by the Indenture. Any Net Cash Proceeds from Asset Sales that are not or were not applied or invested as provided in the first sentence of this paragraph (including any Net Cash Proceeds which were committed to be invested as provided in such sentence but which are not in fact invested within the time period provided) will be deemed to constitute “Excess Proceeds.” Within 30 days following each date on which the aggregate amount of Excess Proceeds exceeds $25 million, the Company will make an offer to purchase from the holders of the notes and holders of any of other Indebtedness of the Company ranking pari passu with the Securities from time to time outstanding with similar provisions requiring the Company to make an offer to purchase or redeem such Indebtedness with the proceeds from such Asset Sale, on a pro rata basis, an aggregate principal amount (or accreted value, as applicable) of Securities and such other Indebtedness equal to the Excess Proceeds on such date, at a purchase price in cash equal to 100% of the principal amount (or accreted value, as applicable) of the Securities and such other Indebtedness, plus, in each case, accrued interest (if any) to the Payment Date. To the extent that the aggregate amount of Securities and other senior Indebtedness 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 (or accreted value, as applicable) of Securities and such other Indebtedness tendered pursuant to an Asset Sale Offer exceeds the amount of Excess Proceeds, the Securities to be purchased and such other Indebtedness shall be selected on a pro rata basis. Upon completion of such Offer to Purchase, the amount of Excess Proceeds shall be reset at zero. Notwithstanding, and without complying with, any of the foregoing provisions:
(1) the Company, the Subsidiary Guarantors and its and their respective Restricted Subsidiaries may, in the ordinary course of business, convey, sell, lease, transfer, assign or otherwise dispose of inventory acquired and held for resale in the ordinary course of business;
(2) the Company, the Subsidiary Guarantors and its and their respective Restricted Subsidiaries may convey, sell, lease, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Article 5 and Section 4.13 of the Indenture;
(3) the Company, the Subsidiary Guarantors and its and their respective Restricted Subsidiaries may sell or dispose of damaged, worn out or other obsolete property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the business of the Company, the Subsidiary Guarantor or such Restricted Subsidiary, as applicable; and
(4) the Company, the Subsidiary Guarantors its and their respective Restricted Subsidiaries may exchange assets held by the Company, the Subsidiary Guarantor or a Restricted Subsidiary for one or more real estate properties and/or one or more Related Businesses of any Person or entity owning one or more real estate properties and/or one or more Related Businesses; provided that the Board of the Company has determined in good faith that the fair market value of each item of Designated Noncash Consideration being measured at the time assets received and without giving effect to subsequent changes in value. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, by the Company or a Restricted Subsidiary thereof may apply an amount are approximately equal to the Applicable Percentage fair market value of such Net Proceeds (the “Applicable Proceeds”) at its option:
assets exchanged by the Company. No transaction listed in clauses (1) through (4) inclusive shall be deemed to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such an “Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to this.”
Appears in 2 contracts
Sources: Supplemental Indenture (Host Hotels & Resorts L.P.), Supplemental Indenture (Host Hotels & Resorts, Inc.)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such the Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such the fair market value is determined by the Company’s Board of Directors and evidenced by a resolution of the CompanyBoard of Directors set forth in an Officers’ Certificate delivered to the Trustee; and
(3) at least 75% of the consideration from such received in the Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or readily marketable securitiesEquivalents. For purposes of this clause (3) of Section 4.114.10 only, each of the following shall will be deemed to be cashcash or Cash Equivalents:
(a) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) , of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or such Subsidiary into cash, Cash Equivalents or readily marketable securities cash within 180 days after of the receipt thereof (thereof, to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);; and
(c) Productive Assets; and
(d) with respect to any Designated Noncash Consideration received by Asset Sale of oil and natural gas properties where the Issuers Company or any such Restricted Subsidiary retains an interest in such Asset Sale having property, the aggregate costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant Affiliate thereof) agrees to this clause (d) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in valuepay. Within 450 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a any such Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such those Net Proceeds (the “Applicable Proceeds”) at its optionoption to any combination of the following:
(1I) to repay prepay, repay, redeem or otherwise retire debt under the Credit Facilities or repurchase any other Indebtedness of the Restricted Subsidiaries of the Company or a Guarantor (other than intercompany Indebtedness, Capital Stock or Indebtedness represented solely by a guarantee that is subordinated to the Notes or the Subsidiary Guarantees) or any Indebtedness of a Restricted Subsidiary of the Companythat is not a Guarantor (other than intercompany Indebtedness);
(2II) to repay 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;
(III) to acquire a majority of the Voting Stock of one or more other Persons primarily engaged in the Oil and Gas Business;
(IV) to make one or more capital expenditures; or
(V) to acquire other long-term assets that are used or useful in the Oil and Gas Business. Pending the final application of any Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce revolving credit borrowings or otherwise retire unsecured Indebtedness of invest the Net Proceeds in any manner that is not prohibited by the Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute “Excess Proceeds.” On the 361st day after the Asset Sale (or, at the Company’s option, so long as a pro rata offer is made in accordance with any earlier date), if the procedures set forth in aggregate amount of Excess Proceeds then exceeds $50.0 million, the next paragraph Company will make an Asset Sale Offer to all Holders of Notes, and to all holders of other unsecured Pari Passu Indebtedness issued then outstanding, to purchase the maximum Reduced Principal Amount of Notes and such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds, pursuant to the terms in Section 3.04 hereof and this Section 4.10. The offer price in any Asset Sale Offer will be equal to 100% of the Reduced Principal Amount plus accrued and unpaid interest, if any, to the Settlement Date, 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 Settlement Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by the Company; or
(3) to invest Indenture. If the aggregate Reduced Principal Amount of Notes and Pari Passu Indebtedness tendered in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such Pari Passu Indebtedness 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 Original Principal Amount of $1,000 or any such Applicable integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to thisan Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such compliance.
Appears in 2 contracts
Sources: Fourth Supplemental Indenture (Whiting Petroleum Corp), Fifth Supplemental Indenture (Whiting Petroleum Corp)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such the applicable Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of, and
(2) at least seventy-five percent (75%) of the consideration received for the assets sold by the Company or the Restricted Subsidiary, as the case may be, in the Asset Sale shall be in the form of cash or Cash Equivalents received at the time of such Asset Sale.
(b) The Company or such Restricted Subsidiary, as the case may be, may apply the Net Cash Proceeds of any such Asset Sale within 360 days thereof to:
(1) repay secured Indebtedness and Indebtedness under the Bank Credit Facility and, if the Indebtedness repaid is revolving credit Indebtedness, permanently reduce the commitments with respect thereto without Refinancing, or
(2) purchase:
(i) property, plant or equipment or other long-lived tangible assets to be used by the Company or any Restricted Subsidiary in a Permitted Business, or
(ii) Capital Stock of a Person engaged solely in a Permitted Business that will become, upon purchase, a Restricted Subsidiary (collectively, "Replacement Assets") from a Person other than the Company and its Restricted Subsidiaries.
(c) To the extent all or a portion of the Net Cash Proceeds of any Asset Sale are not applied within the 360 days of the Asset Sale as described in Section 3.11(b)(1) or (2), the Company will make an offer to purchase Notes (the "Asset Sale Offer"), at a purchase price equal to one hundred percent (100%) of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon, to the date of purchase (the "Asset Sale Offer Amount"). Pursuant to an Asset Sale Offer, the Company shall purchase from all tendering Holders on a pro rata basis, and, at the Company's option, on a pro rata basis with the holders of any other Indebtedness that is not, by its terms, expressly subordinated in right of payments to the Notes and the terms of which require an offer to purchase such other Indebtedness to be made with the proceeds from the sale of assets ("Pari Passu Debt"), that principal amount (or accreted value in the case of Indebtedness issued with original issue discount) of Notes and Pari Passu Debt to be purchased equal to such unapplied Net Cash Proceeds.
(d) Within 20 days following the 360th day following the date upon which the Asset Sale occurred, the Company must send, by first-class mail, a notice to the record Holders as shown on the Note Register on such 360th day, with a copy to the Trustee, offering to purchase the Notes as described in Section 3.11(c). The Asset Sale Offer shall state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the "Asset Sale Offer Payment Date"). Upon receiving an Asset Sale Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. The Company may, however, defer an Asset Sale Offer until there is an aggregate amount of unapplied Net Cash Proceeds from one or more Asset Sales equal to or in excess of $5.0 million. At that time, the entire amount of unapplied Net Cash Proceeds, and not just the amount in excess of $5.0 million, shall be applied as required pursuant to this covenant. Pending application in accordance with this covenant, Net Cash Proceeds shall be applied to temporarily reduce revolving credit borrowings which can be reborrowed or invested in Cash Equivalents.
(e) On the Asset Sale Offer Payment Date, the Company will, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Asset Sale Offer;
(2) such fair market value is determined by deposit with the Board Paying Agent funds in an amount equal to the Asset Sale Offer Amount in respect of Directors of the Companyall Notes or portions thereof so tendered; and
(3) at least 75% deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers' Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company.
(f) To the extent Holders of Notes and holders of other Pari Passu Debt, if any, which are the subject of an Asset Sale Offer properly tender Notes or the other Pari Passu Debt in an aggregate amount exceeding the amount of unapplied Net Cash Proceeds, the Company will purchase the Notes and the other Pari Passu Debt on a pro rata basis (based on amounts tendered). If only a portion of a Note is purchased pursuant to an Asset Sale Offer, a new Note in a principal amount equal to the portion thereof not purchased will be issued in the name of the consideration from such Holder thereof upon cancellation of the original Note (or appropriate adjustments to the amount and beneficial interests in a Global Note will be made, as appropriate). Notes (or portions thereof) purchased pursuant to an Asset Sale Offer will be cancelled and cannot be reissued.
(g) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws in connection with the purchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with this Section 3.11, the Company shall comply with these laws and regulations and shall not be deemed to have breached its obligations under this Section 3.11 of the Indenture by doing so.
(h) Upon completion of an Asset Sale Offer, the amount of Net Cash Proceeds will be reset at zero. Accordingly, to the extent that the aggregate amount of Notes and other Indebtedness tendered pursuant to an Asset Sale Offer is less than the aggregate amount of unapplied Net Cash Proceeds, the Company may use any remaining Net Cash Proceeds for general corporate purposes of the Company and its Restricted Subsidiaries.
(i) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 4.1, the Successor Entity shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to the deemed sale as if it were an Asset Sale. In addition, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way Fair Market Value of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by properties and assets of the Company or such its Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following Subsidiaries so deemed to be sold shall be deemed to be cash:Net Cash Proceeds for purposes of this covenant.
(aj) If at any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or time any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations non-cash consideration received by the Company or any such Restricted Subsidiary from such transferee that are converted by Subsidiary, as the recipient thereof into cashcase may be, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) connection with any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company converted into or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay sold or otherwise retire debt under the Credit Facilities or any other Indebtedness disposed of the Restricted Subsidiaries of the Company for cash (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of interest received with respect to any non-cash consideration), the Company);
(2) conversion or disposition shall be deemed to repay or otherwise retire unsecured Indebtedness of constitute an Asset Sale hereunder and the Company, so long as a pro rata offer is made Net Cash Proceeds thereof shall be applied in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets this covenant within 450 360 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thisconversion or disposition.
Appears in 2 contracts
Sources: Indenture (Baron Wire & Cable Corp.), Indenture (CCI International, Inc.)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such a Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such the fair market value is determined by (a) an executive officer of the General Partner if the value is less than $20.0 million and evidenced by an Officers’ Certificate delivered to the Trustee, or (b) the Company’s Board of Directors if the value is $20.0 million or more and evidenced by a resolution of the Board of Directors of set forth in an Officers’ Certificate delivered to the CompanyTrustee; and
(3) at least 75% of the aggregate consideration from such received by the Company and its Restricted Subsidiaries in the Asset Sale, together with Sale and all other Asset Sales since the Issue Date on a cumulative basis (including by way date of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary this Indenture is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11provision, each of the following shall will be deemed to be cash:
(a) any liabilities (liabilities, as shown on the Company’s or such any Restricted Subsidiary’s most recent balance sheet) , of the Company or any Restricted such Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are are, within 90 days after the Asset Sale, converted by the recipient thereof Company or such Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a any Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such those Net Proceeds (the “Applicable Proceeds”) at its optionoption to any combination of the following:
(1I) to repay repay, redeem, repurchase or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company)Senior Debt, including Notes;
(2II) to repay acquire all or otherwise retire unsecured Indebtedness substantially all of the Companyproperties or assets of a Person primarily engaged in a Permitted Business;
(III) to acquire a majority of the Voting Stock of a Person primarily engaged in a Permitted Business;
(IV) to make capital expenditures; or
(V) to acquire other long-term assets that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, so long the Company or any Restricted Subsidiary may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as a pro rata offer is made in accordance with the procedures set forth provided in the next preceding paragraph will constitute “Excess Proceeds.” On the 361st day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $20.0 million, the Company will make an Asset Sale Offer to all Holders of Notes, and to all holders of other unsecured Pari Passu Indebtedness issued by then outstanding, to purchase the Company; or
(3) to invest in Productive Assets; provided that any such maximum principal amount of Net Notes and such 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, if any, to the Settlement Date, 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 Settlement Date, and will be payable in cash. If any Excess Proceeds which remain after consummation of an Asset Sale Offer, the Company or a any Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of the applicable Notes and Pari Passu Indebtedness tendered into such Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such Pari Passu Indebtedness to be purchased on a pro rata basis as set forth in Section 3.09(h) of this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any such Applicable Proceeds other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to thisan Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the provisions of this Section 4.10 by virtue of such conflict.
Appears in 2 contracts
Sources: Indenture (Global Partners Lp), Indenture (Global Partners Lp)
Limitation on Asset Sales. (a) The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, consummate an any Asset Sale unless:
(1i) the Company Issuer or such the Restricted Subsidiary receives consideration (as determined in good faith by the Issuer at the time of such contractually agreeing to the Asset Sale Sale) at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) Property subject to such fair market value is determined by the Board of Directors of the CompanyAsset Sale; and
(3ii) at least 75% of the consideration from paid to the Issuer or the Restricted Subsidiary in connection with such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief fromDate, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or readily marketable securities. For purposes the assumption or termination by the purchaser of this Section 4.11, each liabilities of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company Issuer or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that as a result of which the Issuer and the Restricted Subsidiaries are assumed no longer obligated with respect to such liabilities. For the purposes of this Section 4.07:
(1) securities or other assets received by the transferee of Issuer or any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Issuer or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities cash within 180 days after receipt thereof (the closing of such Asset Sale shall be considered to be cash to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(c2) any cash consideration paid to the Issuer or the Restricted Subsidiary in connection with the Asset Sale that is held in escrow or on deposit to support indemnification, adjustment of purchase price or similar obligations in respect of such Asset Sale shall be considered to be cash;
(3) Productive Assets; and
(d) any Designated Noncash Consideration Assets received by the Issuers Issuer or any Restricted Subsidiary in connection with the Asset Sale shall be considered to be cash;
(4) the requirement that at least 75% of the consideration paid to the Issuer or the Restricted Subsidiary in connection with the Asset Sale be in the form of cash or Cash Equivalents or assumed or terminated liabilities shall also be considered satisfied if the cash or Cash Equivalents received constitutes at least 75% of the consideration received by the Issuer or the Restricted Subsidiary in connection with such Asset Sale, determined on an after-tax basis; and
(5) any Designated Non-Cash Consideration received by the Issuer or any Restricted Subsidiary in connection with the Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (d) in respect of Asset Sales that is at that time outstanding, outstanding not to exceed the greater of (ix) $4.5 billion and 70.0 million or (iiy) 3.010.0% of Total Assetsthe Issuer’s aggregate amount of Consolidated EBITDA for the most recent four consecutive fiscal quarters, with determined on a pro forma basis, shall be considered to be cash.
(b) The Net Available Cash (or any portion thereof) from Asset Sales may be applied by 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. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company Issuer or a Restricted Subsidiary thereof may apply an amount equal Subsidiary, to the Applicable Percentage extent the Issuer or such Restricted Subsidiary elects (or is required by the terms of such Net Proceeds (the “Applicable Proceeds”) at its option:any Debt):
(1i) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness Repay (x) secured Debt of the Issuer or a Guarantor (and if the secured Debt being repaid is revolving credit Debt, to correspondingly permanently reduce commitments with respect thereto), (y) any Debt of a non-Guarantor Restricted Subsidiaries of Subsidiary (excluding, in any such case, any Debt that is owed to the Company (other than Indebtedness represented solely by a guarantee of Issuer or a Restricted Subsidiary of the Company)Issuer) or (z) obligations under the Notes;
(2ii) to repay or otherwise retire unsecured Indebtedness Repay other Debt of the Company, Issuer or a Restricted Subsidiary (other than Subordinated Obligations and Debt owed to the Issuer or a Restricted Subsidiary of the Issuer) so long as the Issuer shall equally and ratably reduce (or offer to reduce) obligations under the Notes (i) on a pro rata basis pursuant to Section 3.07, (ii) through open-market purchases or privately negotiated arm’s-length transactions or (iii) by making an offer is made (in accordance with the procedures set forth in the next paragraph below for a Prepayment Offer) to all holders Holders to purchase their Notes at 100% of other unsecured Indebtedness issued the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid;
(iii) to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the CompanyIssuer or another Restricted Subsidiary); or
(3iv) to invest any combination of the foregoing.
(c) Any Net Available Cash from an Asset Sale not applied in Productive Assets; provided that any such amount of Net Proceeds which accordance with the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets preceding paragraph within 450 days from the date of the applicable Asset Sale may be invested in Productive Assets within two years receipt of such Asset SaleNet Available Cash or that the Issuer earlier elects to so designate shall constitute “Excess Proceeds,” provided, however, that a binding commitment to reinvest in Additional Assets pursuant to clause (b)(iii) of this Section 4.07 shall be treated as a permitted application of the Net Available Cash from the date of such commitment; provided that (1i) pending such reinvestment is consummated within 180 days of the final application end of the 450 day period referred to in this sentence, and (ii) if such reinvestment is not consummated within the period set forth in subclause (i) or such binding commitment is terminated, the Net Available Cash not so applied will be deemed to be Excess Proceeds. When the aggregate amount of Excess Proceeds not previously subject to a Prepayment Offer (as defined below) exceeds the greater of (x) $70.0 million and (y) 10% of the Issuer’s aggregate amount of Consolidated EBITDA for the most recent four consecutive fiscal quarters, determined on a pro forma basis, the Issuer will be required to make an offer to purchase (the “Prepayment Offer”) the Notes, which offer shall be in the amount of the Allocable Excess Proceeds, on a pro rata basis according to principal amount, at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the purchase date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date), in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture. To the extent that any portion of the amount of Net Available Cash remains after compliance with the preceding sentence and provided that all Holders of Notes have been given the opportunity to tender their Notes for purchase in accordance with this Indenture, the Issuer or such Restricted Subsidiary may use the remaining amount for any such Applicable purpose permitted by this Indenture and the amount of Excess Proceeds pursuant will be reset to thiszero.
Appears in 2 contracts
Sources: Indenture (Energizer Holdings, Inc.), Indenture (Energizer Holdings, Inc.)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or such a Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value value, determined as of the date of the agreement with respect thereto, of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3ii) at least 75% of the aggregate consideration from such received by the Company and its Restricted Subsidiaries in the Asset Sale, together with Sale and all other Asset Sales since the Issue Date Closing Date, on a cumulative basis (including by way of relief frombasis, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or readily marketable securitiesEquivalents. For purposes of this Section 4.11provision, each of the following shall will be deemed to be cash:
(aA) any liabilities (liabilities, as shown on the Company’s or such any Restricted Subsidiary’s most recent balance sheet) , of the Company or any such Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are (1) assumed by the transferee of any such assets pursuant to a customary novation an agreement that releases the Company or such Restricted Subsidiary from further liabilityliability (or in lieu of such a release, the agreement of the acquiror or its parent company to indemnify and hold the Company or such Restricted Subsidiary harmless from and against any loss, liability or cost in respect of such assumed Indebtedness or liabilities), or (2) delivered, contributed or transferred to the Company as consideration for or otherwise in connection with any such Asset Sale, which is promptly thereafter terminated or otherwise cancelled;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cashare, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (the Asset Sale, converted by the Company or such Subsidiary into cash, to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(cC) Productive Assetsany stock or assets of the kind referred to in clause (ii), (iii) or (v) of Section 5.8(b); and
(dD) any Designated Noncash Consideration received by the Issuers Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received since the Closing Date pursuant to this clause (dD) that is at that the time outstandinghas not been converted to cash, not to exceed the greater of (ix) $4.5 billion 100.0 million and (iiy) 3.05.0% of Total AssetsConsolidated Net Tangible Assets at the time of the receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value. .
(b) Within 450 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a any Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such those Net Proceeds (the “Applicable Proceeds”) at its optionoption to any combination of the following:
(1i) to repay repay, repurchase or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company)redeem Senior Debt;
(2ii) to repay acquire all or otherwise retire unsecured Indebtedness substantially all of the Company, so long as properties or assets of a pro rata offer is made Person primarily engaged in accordance with a Permitted Business;
(iii) to acquire a majority of the procedures set forth Voting Stock of a Person primarily engaged in the next paragraph a Permitted Business;
(iv) to all holders of other unsecured Indebtedness issued by the Companymake capital expenditures; or
(3v) to invest acquire other long-term assets that are used or useful in Productive Assets; provided that any such amount a Permitted Business.
(c) The acquisition of Net Proceeds which stock or assets, or making of a capital expenditure, pursuant to clauses (ii), (iii), (iv) or (v) of Section 5.8(b) shall be deemed to be satisfied if an agreement (including a lease, whether a capital lease or an operating lease) committing to make the acquisitions or expenditure referred to therein is entered into by the Company or a any Restricted Subsidiary thereof has committed to invest within the time period specified in Productive Assets Section 5.8(b) and such Net Proceeds are subsequently applied in accordance with such agreement within 450 days of six months following the applicable Asset Sale may be invested in Productive Assets within two years of date such Asset Sale; provided that agreement is entered into.
(1d) pending Pending the final application of any Net Proceeds, the amount of Company or any such Applicable Restricted Subsidiary may invest the Net Proceeds pursuant to thisin any manner that is not prohibited by this Loan Agreement. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute “Excess Proceeds.”
Appears in 2 contracts
Sources: Loan and Guaranty Agreement (Enviva Inc.), Loan and Guaranty Agreement (Enviva Inc.)
Limitation on Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 7575.0% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) therefor received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion 1,000.0 million and (ii) 3.0% of Total Assets, 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. Within 450 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(32) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 365 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; . The amount of any Net Proceeds received from Asset Sales that are not applied or invested as provided in the preceding paragraph shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $250 million, the Company shall make an Asset Sale Offer to all Holders and all holders of other Indebtedness that (1) pending is of equal priority with the final application Notes containing provisions requiring offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other Indebtedness of equal priority that may be purchased out of the Excess Proceeds, which amount includes the entire amount of the Net Proceeds. The offer price in any Asset Sale Offer shall be payable in cash and equal to 100.0% of the principal amount of the subject Notes plus accrued and unpaid interest, if any, to the date of purchase. If the aggregate principal amount of Notes and such other Indebtedness of equal priority tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes (on as nearly a pro rata basis as possible among the Notes subject to DTC procedures) and such other Indebtedness of equal priority to be purchased on a pro rata basis. If any Excess Proceeds remain after consummation of an Asset Sale Offer, then the Company or any Restricted Subsidiary thereof may use such Applicable remaining Excess Proceeds for any purpose not otherwise prohibited by this Supplemental Indenture. Upon completion of any Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. In the event that the Company shall be required to commence an offer to Holders to purchase Notes pursuant to thisthis Section 4.11, it shall follow the procedures specified in Sections 3.09.
Appears in 2 contracts
Sources: First Supplemental Indenture (Charter Communications, Inc. /Mo/), Second Supplemental Indenture (Charter Communications, Inc. /Mo/)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1) the Company or such the applicable Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
of (as determined in good faith by the Company's Board of Directors); and (2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or the Restricted Subsidiary, as the case may be, from such Restricted Subsidiary is Asset Sale shall be in the form of cash, cash and/or Cash Equivalents or readily marketable securitiesand is received at the time of such disposition. For purposes of this Section 4.11provision, each of the following shall will be deemed to be cash:
: (aA) the amount of any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent applicable balance sheet) of the Company or any such Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant so long as the documents governing such liabilities provide that there is no further recourse to a customary novation agreement that releases the Company or any of its Subsidiaries with respect to such Restricted Subsidiary from further liability;
liabilities and (bB) any securitiesnotes, notes securities or other similar obligations received by the Company or any such of its Restricted Subsidiary Subsidiaries from such transferee that are converted converted, sold or exchanged, within one hundred eighty (180 ) days of the related Asset Sale, by the recipient thereof Company or any of its Restricted Subsidiaries into cash (with such amount actually realized being the portion deemed to be cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);.
(cb) Productive Assets; and
(d) any Designated Noncash Consideration received by Upon the Issuers 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) that is at that time outstanding, not to exceed the greater consummation of (i) $4.5 billion and (ii) 3.0% of Total Assets, 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. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply, or a cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within one hundred eighty (180) days of receipt thereof either (i) to repay Indebtedness under the Credit Agreement; (ii) to make an investment (or to enter into a legally binding agreement to invest) in Replacement Assets or to repay any Indebtedness incurred within one hundred eighty (180) days prior to such Asset Sale and used to acquire Replacement Assets in contemplation of such Asset Sale; or (iii) a combination of prepayment and investment permitted by the foregoing clauses.
(c) Pending the application of any such Net Cash Proceeds, the Company may apply temporarily reduce Indebtedness or otherwise invest such Net Cash Proceeds in any manner that is not prohibited by this Indenture. If any such legally binding agreement to invest such Net Cash Proceeds is terminated, then the Company may, within ninety (90) days of such termination or within one hundred eighty (180) days of such Asset Sale, whichever is later, invest such Net Cash Proceeds as provided in Section 4.16(b) (without regard to the parenthetical contained in clause (ii) thereof). The amount of such Net Cash Proceeds not so used as set forth in the immediately preceding paragraph or in this paragraph constitutes "Excess Proceeds." Notwithstanding the foregoing, for purposes of determining whether an Excess Proceeds Offer is required, pursuant to clause (d) below, Excess Proceeds at any time will be reduced by the Accreted Value of Notes acquired (and surrendered to the Trustee for cancellation) by the Company through open market purchases or optional redemption subsequent to the date of the Asset Sale giving rise to the Excess Proceeds.
(d) When the aggregate amount of Excess Proceeds exceeds $5,000,000, the Company will, not less than thirty (30) nor more than sixty (60) days following such date, make an offer to purchase (an "Excess Proceeds Offer") from all Holders and all holders of other Indebtedness that ranks pari passu in right of payment with the Notes containing provisions requiring the redemption or prepayment or offers to purchase with the proceeds of sales of assets on a pro rata basis, that amount of Notes equal to the Applicable Percentage amount of the Excess Proceeds at a price equal to 100% of the Accreted Value of the Notes to be purchased, plus accrued and unpaid interest, if any, thereon to the date of purchase (provided that in the case where such other Indebtedness is outstanding under a revolving credit or similar agreement, the commitment to lend thereunder is concurrently or permanently reduced). The aggregate Accreted Value of Notes to be purchased pursuant to an Excess Proceeds Offer may be reduced by the Accreted Value of Notes acquired by the Company through open market purchases or optional redemption subsequent to the date of the Asset Sale giving rise to the Excess Proceeds Offer and surrendered to the trustee for cancellation.
(e) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, which transaction does not constitute a Change of Control, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.16, and shall comply with the provisions of this Section 4.16 with respect to such deemed sale as if it constituted an Asset Sale. In addition, the Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.16.
(f) Each notice of an Excess Proceeds Offer pursuant to this Section 4.16 shall be mailed, by first class mail, postage prepaid, by the “Applicable Proceeds”Company to all Holders at their last registered addresses as of a date within fifteen (15) at its optiondays of the mailing of such notice, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Excess Proceeds Offer and shall state the following terms:
(1) that the Excess Proceeds Offer is being made pursuant to repay this Section 4.16 and that all Notes tendered, in whole or otherwise retire debt under in part in integral multiples of $1,000, will be accepted for payment; provided, however, that (i) if the Credit Facilities or any other Indebtedness aggregate principal amount of Notes tendered in an Excess Proceeds Offer plus accrued interest at the expiration of such offer is less than the aggregate amount of the Restricted Subsidiaries Excess Proceeds Offer, the Company may use the deficiency for any purpose not otherwise prohibited by this Indenture and (ii) if the aggregate principal amount of Notes tendered in an Excess Proceeds Offer plus accrued interest thereon at the expiration of such offer exceeds the aggregate amount of the Excess Proceeds Offer, the Company (other than Indebtedness represented solely by shall select the Notes to be purchased on a guarantee of a Restricted Subsidiary of the Company)pro rata basis based on amounts tendered;
(2) to repay the purchase price (including the amount of accrued interest) and the purchase date (which shall be twenty (20) Business Days from the date of mailing of notice of such Excess Proceeds Offer, or otherwise retire unsecured Indebtedness of such longer period as required by law) (the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or"Proceeds Purchase Date");
(3) that any Note not tendered will continue to invest accrue interest;
(4) that, unless the Company defaults in Productive Assetsmaking payment therefor, any Note accepted for payment pursuant to the Excess Proceeds Offer shall cease to accrue interest after the Proceeds Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to an Excess Proceeds Offer will be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day prior to the Proceeds Purchase Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than five (5) Business Days prior to the Proceeds Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Notes purchased; and
(7) that Holders whose Notes are purchased only in part will be issued new Notes in a principal amount equal to the unpurchased portion of the Notes surrendered; provided that any such each Note purchased and each new Note issued shall be in an original principal amount of Net $1,000 or integral multiples thereof. On or before the Proceeds which Purchase Date, the Company shall (i) accept for payment Notes or portions thereof properly tendered pursuant to the Excess Proceeds Offer which are to be purchased in accordance with paragraph (f)(1) above, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price plus accrued interest, if any, of all Notes to be purchased and (iii) deliver to the Trustee Notes so accepted together with an Officers' Certificate stating the Notes or portions thereof being purchased by the Company. The Paying Agent shall promptly mail to the Holders of Notes so accepted the purchase price for such Notes and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a Restricted Subsidiary thereof has committed new Note equal in principal amount at maturity to invest in Productive Assets within 450 days any unpurchased portion of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset SaleNotes surrendered; provided that (1) pending each such new Note shall be in a principal amount at maturity of $1,000 or an integral multiple thereof. Any Notes not so accepted shall be promptly mailed by the final application Company to the Holders thereof. For purposes of this Section 4.16, the amount Trustee shall act as the Paying Agent. Any amounts remaining after the purchase of Notes pursuant to an Excess Proceeds Offer shall be returned by the Trustee to the Company and may be used for any purpose not otherwise prohibited by this Indenture. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Excess Proceeds Offer. To the extent that the provisions of any such Applicable Proceeds pursuant securities laws or regulations conflict with this Section 4.16, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to thishave breached its obligations under this Section 4.16 by virtue thereof.
Appears in 2 contracts
Sources: Credit Agreement (Golfsmith International Holdings Inc), Indenture (Golfsmith International Holdings Inc)
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
(1i) the Company (or such the Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) , or Restricted Subsidiary Equity Interests issued, in such fair market value is determined by the Board of Directors of the CompanyAsset Sale; and
(3ii) at least 7575.0% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) therefor received by the Company or such Restricted Subsidiary is in the form of cashcash or Cash Equivalents; provided, Cash Equivalents or readily marketable securities. For however, that, for purposes of the provisions set forth in this Section 4.11clause (ii) and for no other purpose, each the amount of the following shall be deemed to be cash:
(a1) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Notes Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
liability (bor are otherwise extinguished in connection with the transactions relating to such Asset Sale), (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or any Restricted Subsidiary into cash, cash or Cash Equivalents or readily marketable securities within 180 days after receipt thereof (of receipt, to the extent of the cash, cash or Cash Equivalents received, (3) the Fair Market Value of any property or readily marketable securities assets received (including any Capital Stock of any Person that shall be a Restricted Subsidiary following receipt thereof) that are used or useful in that conversion);
any Related Business and (c) Productive Assets; and
(d4) any Designated Noncash Consideration received by the Issuers Company or any Restricted Subsidiary Subsidiaries in such an Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) that is at that time outstandingclause, not to exceed an aggregate amount at any time outstanding equal to the greater of (ix) $4.5 billion 25.0 million and (iiy) 3.02.5% of Consolidated Total Assets, Assets (with the fair market value Fair Market Value of each item of Designated Noncash Consideration being measured at as of the time received date on which a legally binding commitment for such disposition was entered into and without giving effect to subsequent changes in value), in each case shall be deemed to be cash. Within 450 365 days after the Company or any Restricted Subsidiary’s receipt of any such Net Proceeds from an Asset SaleCash Proceeds, the Company or a such Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Cash Proceeds”) , at its option:
(1) to repay prepay or otherwise pay or repay, purchase, redeem, defease, discharge, cash-collateralize or otherwise acquire or retire debt under the Credit Facilities or any other (A) Secured Indebtedness of the Restricted Subsidiaries Company or any Guarantor (and, if such Indebtedness is under a revolving credit facility, to correspondingly reduce commitments with respect thereto), (B) Senior Indebtedness (other than Secured Indebtedness) of the Company or any Guarantor (and, if such Indebtedness is under a revolving credit facility, to correspondingly reduce commitments with respect thereto); provided, however, that if any such Senior Indebtedness described in this clause (B) other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary the Notes are repaid with such Net Cash Proceeds, the Company shall equally and ratably reduce the Notes through open-market purchases (provided, however, that such purchases are at or above 100.0% of the Companyprincipal amount thereof);
, by redeeming Notes in accordance with Section 3.07 or by making an offer (2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders of the Notes to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, the pro rata principal amount of the Notes or (C) Indebtedness of a Restricted Subsidiary that is not a Guarantor, in the next paragraph case of each of clauses (A), (B) and (C), other than Indebtedness owed to all holders the Company or its Affiliates;
(2) to make an Investment in any one or more businesses (provided, however, that if such Investment is in the form of other unsecured Indebtedness issued by the Companyacquisition of Capital Stock of a Person, such acquisition results in such Person becoming a Restricted Subsidiary if it is not already a Restricted Subsidiary), assets, or property or capital expenditures (including refurbishments), in each case used or useful in a Related Business; or
(3) to invest make a combination of any prepayments or other payments or repayments, purchases, redemptions, defeasances, discharges, cash collateralizations or other acquisitions or retirements and any Investments permitted by the foregoing clauses (1) and (2). In the case of an Investment contemplated by clause (2) above or clause (3) above, a binding commitment to make such Investment within six months shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment; provided, however, that in Productive Assetsthe event such binding commitment is later canceled or terminated for any reason before such Net Cash Proceeds are so applied, the Company or Restricted Subsidiary enters into another binding commitment (a “Second Commitment”) to make an Investment permitted by such clause (2) or clause (3) within six months of such cancellation or termination of the prior binding commitment; provided provided, further, however, that any such amount of Net Proceeds which the Company and its Restricted Subsidiaries may only enter into a Second Commitment under the foregoing provision one time with respect to each Asset Sale.
(b) If, on the 366th day after receipt by the Company or a Restricted Subsidiary thereof has committed of Net Cash Proceeds with respect to invest in Productive Assets within 450 an Asset Sale, any such Net Cash Proceeds have not been applied as permitted by Section 4.06(a) (such Net Cash Proceeds received and not so applied being “Excess Proceeds” and the date of such 366th day being an “Asset Sale Offer Trigger Date”), the Company or one or more Restricted Subsidiaries shall make an offer to all Holders and, if required or permitted by the terms of any Senior Indebtedness, to the holders of such Senior Indebtedness, to purchase (the “Asset Sale Offer”), on a date not less than 10 nor more than 60 days of following the applicable Asset Sale may be invested in Productive Assets within two years Offer Trigger Date, from all Holders and holders of such Senior Indebtedness on a pro rata basis (or as nearly pro rata as practicable) based on the accreted value or principal amount, as applicable, of the Notes and such Senior Indebtedness tendered pursuant to such Asset Sale Offer, that amount of Notes and such Senior Indebtedness equal to the applicable Excess Proceeds (minus any federal, state, provincial, foreign and local taxes payable as a result of the transfer or deemed transfer of funds from the entity that made the Asset Sale to the entity that is making such Asset Sale Offer) at a price equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon, if any, to but excluding the date of purchase (or, in respect of such Senior Indebtedness, the price provided for by the terms of such Senior Indebtedness); provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then, solely for purposes of the definition of “Net Cash Proceeds,” such conversion or disposition shall be deemed to constitute an Asset Sale; provided that (1) pending , and the final application Net Cash Proceeds thereof shall be applied in accordance with the provisions of this Section 4.06. If Holders do not tender Notes in an aggregate principal amount at least equal to the applicable Excess Proceeds for purchase in connection with any Asset Sale Offer, the Company and the Restricted Subsidiaries may use the portion of the Excess Proceeds not used to purchase Notes for any purpose not prohibited by this Indenture. Upon completion of each Asset Sale Offer, the Excess Proceeds shall be reduced by the amount of any such Applicable the Asset Sale Offer. Notwithstanding the occurrence of an Asset Sale Offer Trigger Date, the Company and the Restricted Subsidiaries may defer the Asset Sale Offer until there is an aggregate unutilized Excess Proceeds of at least $5.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Excess Proceeds, and not just the amount in excess of $5.0 million, shall be applied as required pursuant to thisthis Section 4.06). The Company and the Restricted Subsidiaries may satisfy the obligations set forth in this Section 4.06(b) with respect to any Net Cash Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Cash Proceeds prior to an applicable Asset Sale Offer Trigger Date. If the date on which a Note is purchased pursuant to an Asset Sale Offer is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest on that Note shall be paid to the Person that was, at the close of business on such record date, the Holder of that Note, and no additional interest for the period to which that interest record date relates shall be payable, with respect to that Note, to the Person who tendered that Note pursuant to the Asset Sale Offer.
(c) Each Asset Sale Offer shall be mailed (or otherwise sent in accordance with applicable procedures of the Depository) to the record Holders as shown on the register of Holders within 30 days following the Asset Sale Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. Upon receiving notice of the Asset Sale Offer, Holders may elect to tender their Notes in whole or in part in amounts equal to $2,000 or integral multiples of $1,000 in excess thereof in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding the Excess Proceeds, the tendered Notes shall be purchased on a pro rata basis (or as nearly pro rata as practicable) based on the amount of Notes tendered. An Asset Sale Offer shall remain open for a period of 20 Business Days or such longer period as may be required by law. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the requirements of this Section 4.06, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.06 by virtue thereof.
Appears in 2 contracts
Sources: Indenture (Jefferson Capital, Inc. / DE), Indenture (Jefferson Capital, Inc. / DE)
Limitation on Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value (for the avoidance of doubt to be determined on the date of contractually agreeing to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to this
Appears in 2 contracts
Sources: Tenth Supplemental Indenture (Cco Holdings LLC), Eighth Supplemental Indenture (Cco Holdings LLC)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such the applicable Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of, as determined in good faith by the Company’s Board of Directors;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary exclusive of indemnities, as the case may be, from such Asset Sale is in the form of cash, cash or Cash Equivalents or readily marketable securities. For purposes and is received at the time of this Section 4.11, each such disposition; provided that the amount of the following shall be deemed to be cash:
(a) any liabilities (of the Company or any such Restricted Subsidiary, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) , that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
assets, (b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or such Restricted Subsidiary into cash, cash or Cash Equivalents or readily marketable securities within 180 60 days after receipt thereof (of the time of such disposition, to the extent of the cash, cash or Cash Equivalents or readily marketable securities received in that conversion);
and (c) Productive Assets; and
(d) any Designated Noncash Non-Cash Consideration received by the Issuers Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (d) that is at that time outstandingc), not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets50.0 million, with the fair market value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value. Within 450 days after , will be deemed to be cash for the receipt purposes of any Net Proceeds from this clause (2); and
(3) upon the consummation of an Asset Sale, the Company applies directly or through a Restricted Subsidiary, or causes such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 360 days of receipt thereof either (A) to repay Senior Debt (and in the case of any Indebtedness outstanding under a revolving credit facility and repaid in satisfaction of this covenant, to permanently reduce the amounts that may be reborrowed thereunder by an equivalent amount), with the Net Cash Proceeds received in respect thereof, (B) to reinvest in Productive Assets, or (C) a combination of prepayment, reduction and investment permitted by the foregoing clauses (3)(A) and (3)(B); provided that the 75% limitation referred to above will not apply to any sale, transfer or other disposition of assets in which the cash portion of the consideration received therefor is equal to or greater than what the after-tax net proceeds would have been had such transaction complied with the aforementioned 75% limitation. On the 361st day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (3)(A), (3)(B) and (3)(C) of the preceding sentence (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Cash Proceeds that have not been so applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(A), (3)(B) and (3)(C) of the preceding sentence (each, a “Net Proceeds Offer Amount”) will be applied by the Issuer to make an offer to repurchase (the “Net Proceeds Offer”) on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders on a pro rata basis that amount of Securities equal to the Net Proceeds Offer Amount multiplied by a fraction, the numerator of which is the aggregate principal amount of Securities then outstanding and the denominator of which is the sum of the aggregate principal amount of Securities and Pari Passu Indebtedness then outstanding (the “Pro Rata Share”), at a price equal to 100% of the principal amount of the Securities to be repurchased, plus accrued interest to the date of repurchase. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $20.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating to such initial Net Proceeds Offer Amount from all Asset Sales by the Company and its Restricted Subsidiaries aggregates at least $20.0 million, at which time the Issuer will apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer, the first date the aggregate of all such deferred Net Proceeds Offer Amounts is at least $20.0 million being deemed to be a Net Proceeds Offer Trigger Date. To the extent that the aggregate purchase price of Securities tendered pursuant to any Net Proceeds Offer is less than the Pro Rata Share, the Issuer or any Guarantor may use such amount for any purpose not prohibited by this Indenture. Upon completion of any Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset to zero. Notwithstanding the first two paragraphs of this Section 4.16, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraphs to the extent
(1) at least 50% of the consideration for such Asset Sale constitutes Productive Assets; and
(2) such Asset Sale is for fair market value; provided that if the fair market value is determined to exceed $50.0 million, such determination will be made in good faith by the Company’s Board of Directors; provided, further, that the fair market value of any consideration not constituting Productive Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph will constitute Net Cash Proceeds subject to the provisions of the first two paragraphs of this Section 4.16. In the event of the transfer of substantially all, but not all, of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, the successor corporation will be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.16, and will comply with the provisions of this Section 4.16 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold will be deemed to be Net Cash Proceeds for purposes of this Section 4.16. Notice of a Net Proceeds Offer will be mailed, by first class mail, by the Issuer to Holders as shown on the register of Holders at their last registered address not less than 30 days nor more than 60 days before the Net Proceeds Offer Payment Date, with a copy to the Trustee. The notice shall contain instructions and materials necessary to enable such Holders to tender Securities pursuant to the Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.16, that all Securities tendered will be accepted for payment; provided, however, that if the aggregate principal amount of Securities tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of the Net Proceeds Offer, the Issuer shall select the Securities to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Issuer so that only Securities in denominations of $2,000 or multiples thereof shall be purchased) and that the Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by law;
(2) the Net Proceeds Offer Amount (including the amount of accrued interest) and the Net Proceeds Offer Payment Date (which shall be not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date and which shall be at least five Business Days after the Trustee receives notice thereof from the Issuer);
(3) that any Security not tendered will continue to accrue interest;
(4) that, unless the Issuer defaults in making payment therefor, any Security accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Date;
(5) that Holders electing to have a Security purchased pursuant to a Net Proceeds Offer will be required to surrender the Security, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day prior to the Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the second Business Day prior to the Net Proceeds Offer Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities such Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Securities purchased; and
(7) that Holders whose Securities are purchased only in part will be issued new Securities in a principal amount equal to the unpurchased portion of the Securities surrendered; provided, however, that each Security purchased and each new Security issued shall be in an original principal amount of $2,000 or any greater integral multiple of $1,000 thereof. On or before the Net Proceeds Offer Payment Date, the Issuer shall (i) accept for payment Securities or portions thereof tendered pursuant to the Net Proceeds Offer which are to be purchased in accordance with item (1) above, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price plus accrued interest, if any, of all Securities to be purchased and (iii) deliver to the Trustee Securities so accepted together with an Officers’ Certificate of the Issuer stating the Securities or portions thereof being purchased by the Issuer. The Paying Agent shall promptly mail to the Holders of Securities so accepted payment in an amount equal to the Applicable Percentage purchase price plus accrued interest, if any. For purposes of such this Section 4.16, the Trustee shall act as the Paying Agent. Any amounts remaining after the purchase of Securities pursuant to a Net Proceeds (Offer promptly shall be returned by the “Applicable Proceeds”) at its option:
(1) Trustee to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata Issuer. If an offer is made in accordance to repurchase the Securities pursuant to a Net Proceeds Offer, the Company will and will cause its Restricted Subsidiaries to comply with all tender offer rules under state and federal securities laws, including, but not limited to, Section 14(e) under the Exchange Act and Rule 14e-1 thereunder, to the extent applicable to such offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.16, the Company and the Issuer shall comply with the procedures set forth in the next paragraph applicable securities laws and obligations and shall not be deemed to all holders of other unsecured Indebtedness issued have breached their obligations hereunder by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thisvirtue thereof.
Appears in 2 contracts
Sources: Indenture (Scientific Games Corp), Indenture (Scientific Games Corp)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such the Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Capital Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(32) at least 75% of the consideration from such received in the Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Eligible Cash Equivalents or readily marketable securitiesEquivalents. For purposes of this Section 4.11provision, each of the following shall will 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) sheet of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation assignment and assumption agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities cash within 180 days after of their receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(c) Productive Assets; and
(d3) any Designated Noncash Non-cash Consideration received by the Issuers Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (dc) that is at that time outstanding, not to exceed the greater of (ix) $4.5 billion 20.0 million and (iiy) 3.01.0% of Total Assets, at the time of the receipt of such Designated Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value). Within 450 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or a the applicable Restricted Subsidiary thereof Subsidiary, as the case may be) may apply an amount equal to the Applicable Percentage of such Net Cash Proceeds (the “Applicable Proceeds”) at its option:
(1) to permanently repay Debt under the Credit Agreement and, if the Obligation repaid is revolving credit Debt, to correspondingly reduce commitments with respect thereto;
(2) in the case of an Asset Sale by a Restricted Subsidiary that is not a Guarantor, to repay, prepay, defease, redeem, purchase or otherwise retire debt under (and to permanently reduce commitments with respect thereto in the Credit Facilities case of revolving borrowings) Debt of such Restricted Subsidiary or any other Indebtedness of the Restricted Subsidiaries Subsidiary that is not a Guarantor;
(3) to permanently reduce obligations under any other Debt of the Company (other than Indebtedness represented solely by a guarantee any Redeemable Capital Interests or subordinated Debt) or Debt of a Restricted Subsidiary (other than any Redeemable Capital Interests or guarantor subordinated Debt) (in each case other than Debt owed to the Company or an Affiliate of the Company);
; provided that the Company shall equally and ratably reduce obligations under the Notes as provided under Section 3.7, through open market purchases (2) to repay the extent such purchases are at or otherwise retire unsecured Indebtedness above 100% of the Company, so long as a pro rata principal amount thereof) or by making an offer is made (in accordance with the procedures set forth below for an Offer to Purchase) to all holders to purchase their Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid;
(4) to acquire all or substantially all of the assets of, or any Capital Interests of, another Permitted Business, if, after giving effect to any such acquisition of Capital Interests, the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(5) to make a capital expenditure in or that is used or useful in a Permitted Business or to make expenditures for maintenance, repair or improvement of existing properties and assets in accordance with the provisions of this Indenture;
(6) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(7) any combination of the foregoing; provided that pending the final application of any such Net Available Cash Proceeds in accordance with clauses (1) through (7) above, the Company and its Restricted Subsidiaries may temporarily reduce Debt or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture; provided further that a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment so long as the Company or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 360 days of such commitment (an “Acceptable Commitment”), it being understood that if an Acceptable Commitment is later cancelled or terminated for any reason before such Net Cash Proceeds are applied, then all such Net Cash Proceeds not so applied shall constitute Excess Proceeds. Subject to the next two succeeding paragraphs, any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the next preceding paragraph of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within thirty days thereof, the Company will make an Offer to Purchase to all Holders of Notes (including any Permitted Additional Note Obligations), and to all holders of other unsecured Indebtedness issued Debt ranking pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to assets sales, equal to the Excess Proceeds. The offer price in any Offer to Purchase will be equal to 100% of the principal amount plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Offer to Purchase, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the Company; or
(3) to invest in Productive Assets; provided that any such aggregate principal amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed Notes (including any Permitted Additional Note Obligations) and other pari passu debt tendered into such Offer to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Purchase exceeds the amount of Excess Proceeds, the Trustee will select the Notes (including any such Applicable Permitted Additional Note Obligations) to be purchased on a pro rata basis among each series. Upon completion of each Offer to Purchase, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to thisan Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.
Appears in 2 contracts
Sources: Indenture (Ryerson Holding Corp), Indenture (Ryerson International Material Management Services, Inc.)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale Sale, unless:
(1) the Company (or such the Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Capital Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such received in the Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Sale by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cashcash or Eligible Cash Equivalents; and
(3) to the extent that any consideration received by the Company or any Restricted Subsidiary in such Asset Sale constitutes assets that are of a type or class that constitutes Collateral, Cash Equivalents such assets are added to the Collateral securing the Notes and the Note Guarantees, as applicable, in the manner and to the extent required by this Indenture or readily marketable securitiesany of the Collateral Documents. For purposes of clause (2) of this Section 4.114.16(a) and for no other purpose, each of the following shall will be deemed to be cash:
(ai) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet) sheet of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary assignment and assumption or novation agreement that releases the Company or such Restricted Subsidiary from further liabilityliability with respect thereto;
(bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities cash within 180 days after of their receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(c) Productive Assets; and
(diii) any Designated Noncash Non-cash Consideration received by the Issuers Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (diii) that is at that time outstanding, not to exceed (A) $25.0 million prior to a Covenant Reset Event and (B) the greater of (ix) $4.5 billion 50.0 million and (iiy) 3.02.5% of the Consolidated Total AssetsAssets of the Company and its Restricted Subsidiaries at the time of the receipt of such Designated Non-cash Consideration after a Covenant Reset Event, in each case, with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value. .
(b) Within 450 365 days after the receipt of any Net Proceeds Available Cash from an Asset Sale, or, if with respect to clauses (3), (4) and (5) of this Section 4.16(b), within 365 days after the receipt of any Net Available Cash from any Asset Sale the Company or a any Restricted Subsidiary thereof may entered into a contractual commitment pursuant to a binding agreement with the good faith expectation to apply any such Net Available Cash within 180 days of such commitment (an amount equal to “Acceptable Commitment”), then, within the Applicable Percentage later of 365 days after the receipt of such Net Proceeds Available Cash and 180 days from the date of the Acceptable Commitment, the Company (or the “Applicable Proceeds”applicable Restricted Subsidiary, as the case may be) may apply such Net Available Cash at its optionoption to any combination of the following:
(1) to repay or otherwise retire debt permanently reduce (and permanently reduce commitments with respect thereto): (A) Debt under the Senior Credit Facilities or any Facilities, (B) other Indebtedness of the Restricted Subsidiaries First Priority Lien Obligations of the Company or a Guarantor or (C) Debt of a Non-Guarantor Subsidiary, in each case, other than Indebtedness represented solely Debt owed to the Company or an Affiliate of the Company;
(2) to permanently repay or reduce other Pari Passu Lien Obligations, other than Debt owed to the Company or an Affiliate of the Company; provided that if the Company shall so reduce any such Pari Passu Lien Obligations, the Company shall equally and ratably reduce Obligations under the Notes as provided either, at the Company’s option, under 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 in this Section 4.16 for an Offer to Purchase) to all Holders of Notes to purchase some or all of their Notes at a guarantee purchase price equal to 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 paid;
(3) if the assets disposed of in the Asset Sale were not Collateral, to permanently repay or reduce other Pari Passu Debt, other than Debt owed to the Company or an Affiliate of the Company;
(4) to acquire all or substantially all of the assets or a line of business of, or any Capital Interests of, another Person engaged in a Permitted Business, if, after giving effect to any such acquisition of Capital Interests, such Person is or becomes a Restricted Subsidiary of the Company);
(25) to repay make capital expenditures (including any capitalized software development costs) in or that are used or useful in a Permitted Business or to make expenditures for maintenance, repair or improvement of existing properties and assets in accordance with the provisions of this Indenture;
(6) to acquire other assets that are not classified as current assets under GAAP that are used or useful in a Permitted Business; provided that, to the extent that any such assets are of a type or class that constitutes Collateral, such assets are added to the Collateral securing the Notes and the Note Guarantees, as applicable, in the manner and to the extent required by this Indenture or any of the Collateral Documents; or
(7) any combination of the foregoing; provided that pending the final application of any such Net Available Cash in accordance with clause (1), (2), (3), (4), (5), (6) or (7) of this Section 4.16(b), the Company or any Restricted Subsidiary may temporarily reduce revolving credit borrowings under any Debt Facility or otherwise retire unsecured Indebtedness invest the Net Available Cash in any manner not prohibited by this Indenture.
(c) Any Net Available Cash from Asset Sales that are not applied or invested as provided in Section 4.16(b) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds (x) $25.0 million prior to a Covenant Reset Event or (y) $50.0 million after a Covenant Reset Event, the CompanyCompany will, so long as within 30 days thereof, make an Offer to Purchase to all Holders of Notes (on a pro rata basis among the Notes), and to all holders of other Pari Passu Lien Obligations (and, in the case of a disposition of assets that are not Collateral, the holders of any Pari Passu Debt) containing provisions similar to those set forth in this Indenture with respect to offers to purchase, the maximum principal amount of Notes and such other Pari Passu Lien Obligations (or other Pari Passu Debt) that may be purchased out of the Excess Proceeds. The offer is made price in any Offer to Purchase will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to, but not including, the date of purchase and will be payable in cash, in accordance with the procedures set forth in the next paragraph definition of Offer to all holders Purchase or the agreements governing the Pari Passu Lien Obligations (or the other Pari Passu Debt), as applicable, in the case of other unsecured Indebtedness issued by the Company; or
Notes in integral multiples of $1,000 (3) to invest or if a PIK Payment has been made, in Productive Assetsintegral multiples of $1.00); provided that any such if, following repurchase of a portion of a Note, the remaining principal amount of Net such Note outstanding immediately after such repurchase would be less than $150,000 (or if a PIK Payment has been made, less than $1.00), then the portion of such Note so repurchased shall be reduced so that the remaining principal amount of such Note outstanding immediately after such repurchase is $150,000 (or if a PIK Payment has been made, $1.00). The Company shall commence an Offer to Purchase with respect to Excess Proceeds which by mailing (or otherwise delivering in accordance with the applicable procedures of the Depositary) the notice required pursuant to the definition of Offer to Purchase to the Holders, with a copy to the Trustee. If any Excess Proceeds remain after consummation of an Offer to Purchase, the Company may use those funds for any purpose not otherwise prohibited by this Indenture and they will no longer constitute Excess Proceeds. If the aggregate principal amount of Notes and other Pari Passu Lien Obligations (or a Restricted Subsidiary thereof has committed other Pari Passu Debt) tendered in such Offer to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Purchase exceeds the amount of Excess Proceeds, the Company will select the Notes and such other Pari Passu Lien Obligations (or such other Pari Passu Debt) 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 $150,000 or any integral multiple of $1,000 in excess thereof will be purchased (or if a PIK Payment has been made, in denominations of $1.00 and any integral multiple of $1.00 in excess thereof)). Upon completion of each Offer to Purchase, the amount of Excess Proceeds will be reset at zero.
(d) If the Purchase Date is on or after an applicable Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest to the Purchase Date will be paid on the Purchase Date to the Person in whose name a Note is registered at the close of business on such Applicable Proceeds record date.
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to thisan Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will be deemed to have complied with its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.
Appears in 2 contracts
Sources: Senior Secured Notes Indenture (CIMPRESS PLC), Note and Warrant Purchase Agreement (CIMPRESS PLC)
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an any Asset Sale Sale, unless:
(1i) no Default shall have occurred and be continuing or would occur as a result of such Asset Sale;
(ii) the consideration received by the Company or such Restricted Subsidiary receives consideration at Subsidiary, as the time of such Asset Sale case may be, is at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2iii) in the case of an Asset Sale that constitutes an Asset Disposition, the Company could Incur, at the time of and after giving pro forma effect to such fair market value is determined by Asset Disposition, at least US$1.00 of Indebtedness under the Board of Directors of the Companyproviso in Section 4.05(a); and
(3iv) at least 75% of the consideration from such received consists of cash, Temporary Cash Investments or Replacement Assets; provided that in the case of an Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by Sale in which the Company or such Restricted Subsidiary is receives Replacement Assets involving aggregate consideration in excess of US$10.0 million (or the form Dollar Equivalent thereof), the Company shall deliver to the Trustee an opinion as to the fairness to the Company or such Restricted Subsidiary of cashsuch Asset Sale from a financial point of view issued by an accounting, Cash Equivalents appraisal or readily marketable securitiesinvestment banking firm of recognized international standing. For purposes of this Section 4.11provision, each of the following shall 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) , of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes, any Subsidiary Guarantee or any JV Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary assumption, assignment, novation or similar agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(b2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly, but in any event within 30 days of closing, converted by the recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);.
(cb) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or a the applicable Restricted Subsidiary thereof Subsidiary, as the case may be) may apply an amount equal to the Applicable Percentage of such Net Cash Proceeds (the “Applicable Proceeds”) at its optionto:
(1i) to permanently repay or otherwise retire debt under the Credit Facilities or any other Senior Indebtedness of the Restricted Subsidiaries of the Company (other than or a Subsidiary Guarantor or any Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
that is not a Subsidiary Guarantor (2and, if such Senior Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce permanently commitments with respect thereto) in each case owing to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of Person other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which than the Company or a Restricted Subsidiary thereof has committed Subsidiary; or
(ii) acquire Replacement Assets.
(c) Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in clauses (i) and (ii) of Section 4.13(b) will constitute “Excess Proceeds.” Excess Proceeds of less than US$10.0 million (or the Dollar Equivalent thereof) will be carried forward and accumulated. When accumulated Excess Proceeds exceed US$10.0 million (or the Dollar Equivalent thereof), within 10 days thereof, the Company must make an Offer to invest in Productive Assets within 450 days Purchase Notes having a principal amount equal to:
(i) accumulated Excess Proceeds, multiplied by
(ii) a fraction (x) the numerator of which is equal to the outstanding principal amount of the applicable Asset Sale may Notes and (y) the denominator of which is equal to the outstanding principal amount of the Notes and all pari passu Indebtedness similarly required to be invested repaid, redeemed or tendered for in Productive Assets within two years of such connection with the Asset Sale; provided that , rounded down to the nearest US$1,000.
(1d) pending The offer price in any Offer to Purchase will be equal to 100% of the final application principal amount plus accrued and unpaid interest to the date of purchase, and will be payable in cash.
(e) If any Excess Proceeds remain after consummation of an Offer to Purchase, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes (and any other pari passu Indebtedness) tendered into (or required to be prepaid or redeemed in connection with) such Offer to Purchase exceeds the amount of any Excess Proceeds, the Trustee will select the Notes (and such Applicable other pari passu Indebtedness) to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness tendered (or required to be prepaid or redeemed). Upon completion of each Offer to Purchase, the amount of Excess Proceeds pursuant to thiswill be reset at zero.
Appears in 2 contracts
Sources: Indenture (Xinyuan Real Estate Co., Ltd.), Indenture (Xinyuan Real Estate Co., Ltd.)
Limitation on Asset Sales. The Company shall Borrower will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unlesssell, transfer, lease or otherwise dispose of any asset, including any Equity Interest, owned by it, nor will the Borrower permit any of the Subsidiaries to issue any additional Equity Interest in such Subsidiary, except:
(1a) (i) dispositions of inventory (including parcels in developed cemetery properties), used, obsolete, worn out or surplus equipment and Permitted Investments in the ordinary course of business and (ii) dispositions of property which the Borrower in good faith determines is no longer used or useful in the conduct of the business of the Borrower and its Subsidiaries;
(b) sales, transfers and dispositions to the Borrower or a Subsidiary; provided that any such sales, transfers or dispositions involving a Non-Guarantor shall be made in compliance with Section 6.10 regarding Restrictions on Transactions with Affiliates below; and
(c) Sale and Leaseback Transactions permitted by Section 6.04 hereof;
(d) dispositions of accounts receivable in connection with the collection or compromise thereof;
(e) to the extent constituting sales, transfers, leases or dispositions, the granting of Liens permitted by Section 6.03, the making of Investments permitted by Section 6.06, mergers, consolidations, liquidations and the sale of all or substantially all assets permitted by Section 6.05 and Restricted Payments permitted by Section 6.09; and
(f) sales, transfers, leases and other dispositions of assets (other than accounts receivable or inventory) the Company or such Restricted Subsidiary receives consideration at sale of which is not otherwise permitted by any other clause; provided that (i) the time of such Asset Sale at least equal to the aggregate fair market value of the all assets or Equity Interests issued or sold sold, transferred or otherwise disposed of;
of in reliance upon this clause (2f) such shall not exceed $1,000,000,000, (ii) all sales, transfers, leases and other dispositions individually, or in a series of related transactions, for consideration in excess of $5,000,000 permitted pursuant to this clause (f) shall be made for fair market value is determined by and (iii) the Board of Directors of the Company; and
(3) at least 75% of the aggregate, non-cash consideration from such Asset Sale, together received in connection with all other Asset Sales since such sales shall not exceed $200,000,000 during the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securitiesterm hereof. For purposes of this Section 4.11and Section 6.06, each any transaction which is a “like kind exchange” under Section 1031 of the following Code shall be deemed to be cash:
considered a disposition (a) any liabilities (as shown on if the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company Borrower or any Restricted Subsidiary thereof receives cash consideration upon the completion thereof) or an acquisition (other than contingent liabilities if the Borrower or a Subsidiary pays cash consideration upon the completion thereof) only upon the completion of such transaction, and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (then only to the extent of the cash, Cash Equivalents cash received or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thispaid.
Appears in 2 contracts
Sources: Credit Agreement (Service Corp International), Credit Agreement (Service Corporation International)
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, consummate an any Asset Sale unless:
(1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) Property subject to such fair market value is determined by the Board of Directors of the CompanyAsset Sale; and
(3ii) except in the case of a Permitted Asset Swap, at least 7575.0% of the consideration from paid to the Company or such Restricted Subsidiary in connection with such Asset Sale, together with all other Asset Sales since the Issue Date (on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwisebasis) received by the Company or such Restricted Subsidiary is in the form of any one or a combination of the following: (A) cash, Cash Equivalents or readily marketable securities. For purposes Additional Assets, (B) the assumption by the purchasers of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and or liabilities that are by their terms subordinated to the NotesNotes or the applicable Guaranty) that are assumed by the transferee as a result of any such assets pursuant to a customary novation agreement that releases which the Company or and the Restricted Subsidiaries are no longer obligated with respect to such Restricted Subsidiary from further liability;
liabilities, (bC) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from to the extent such transferee that securities, notes or other obligations are converted by the recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities Additional Assets within 180 days after receipt thereof of such Asset Sale or (to the extent of the cash, D) Designated Non-Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers Company or any such Restricted Subsidiary in such Asset Sale Subsidiary, as the case may be, having an aggregate fair market valueFair Market Value (determined as of the closing date of the applicable Asset Sale for which such Designated Non-Cash Consideration is received), taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause subclause (dD) that is at that the time outstanding, not to exceed in excess of the greater of (ix) $4.5 billion 425.0 million and (iiy) 3.05.0% of Total Assets, with the fair market value Consolidated Net Tangible Assets of each item of Designated Noncash Consideration being measured the Company at the time received and without giving effect to subsequent changes in value. of the receipt of such Designated Non-Cash Consideration.
(b) Within 450 days after the later of (x) the date of any Asset Sale and (y) the receipt of any Net Proceeds from an Available Cash (or any portion thereof, if any) of such Asset Sale, the Company or a Restricted Subsidiary thereof may may, to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Debt) apply an amount equal up to the Applicable Percentage of Net Available Cash from such Net Proceeds (the “Applicable Proceeds”) at its optionAsset Sale:
(1i) to repay or otherwise retire debt under Repay Senior Debt (and in the Credit Facilities or any other Indebtedness case of the Restricted Subsidiaries a revolving credit facility, to correspondingly reduce commitments with respect thereto) of the Company (other than Indebtedness represented solely or any Subsidiary Obligor that is secured by a guarantee Lien, which Lien is permitted by this Indenture, or Debt of a any Restricted Subsidiary that is not a Subsidiary Obligor (excluding, in any such case, any Debt owed to the Company or an Affiliate of the Company);
(2ii) to repay Repay other Senior Debt (and in the case of a revolving credit facility, to correspondingly reduce commitments with respect thereto) of the Company or otherwise retire unsecured Indebtedness any Subsidiary Obligor (excluding, in any such case, any Debt owed to the Company or an Affiliate of the Company); provided, that to the extent the Company or any Subsidiary Obligor Repays Senior Debt other than the Notes pursuant to this clause (b), the Company or any Subsidiary Obligor shall either (x) equally and ratably purchase such Notes through open-market purchases (to the extent such purchases are at or above 100.0% of the principal amount thereof) or redeem such Notes as provided under Section 3.07 or (y) make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes at 100.0% of the principal amount thereof, plus the amount of accrued but unpaid interest on the amount of such Notes that would otherwise be prepaid;
(iii) to reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary) and to make capital expenditures;
(iv) with respect to Asset Sales of assets of a Restricted Subsidiary that is not a Subsidiary Obligor, to permanently reduce Debt (and in the case of a revolving credit facility, to correspondingly reduce commitments with respect thereto) of such Restricted Subsidiary (except that if the assets sold by such Restricted Subsidiary were contributed to such Restricted Subsidiary after the Issue Date, the proceeds of the sale of such assets may only be used to repay Debt of such Restricted Subsidiary secured by such assets) other than Debt owed to the Company or another Subsidiary; or
(v) any combination of the foregoing; provided that a binding commitment or letter of intent entered into not later than such 450th day shall be treated as a permitted application of the Net Available Cash from the date of such commitment or letter of intent so long as the Company or such Restricted Subsidiary enters into such commitment or letter of intent with the good faith expectation that the Net Available Cash will be applied to satisfy such commitment or letter of intent within the later of such 450th and 180 days of such commitment or letter of intent (an “Acceptable Commitment”) or, in the event any Acceptable Commitment is later cancelled or terminated for any reason before such Net Available Cash is applied in connection therewith, the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a pro rata “Second Commitment”) within 180 days of such cancellation or termination; provided further that if any Second Commitment is later cancelled or terminated for any reason before such Net Available Cash is applied, then the Net Available Cash shall constitute Excess Proceeds.
(c) Notwithstanding any other provisions of this covenant, (i) to the extent that the application of any or all of the Net Available Cash of any Asset Sale by the Company or a Foreign Subsidiary (a “Foreign Disposition”) is (x) prohibited or delayed by or would violate or conflict with applicable local law, (y) subject to other legal or regulatory impediments from being repatriated to the United States or (z) would conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could reasonably be expected to result in, a material risk of personal or criminal liability for any Officer of such Foreign Subsidiary, then, in each such case, an amount equal to the portion of such Net Available Cash so affected will not be required to be applied in compliance with this covenant, and such amounts may be retained by the Company or the applicable Foreign Subsidiary; provided that if at any time within one year following the date on which the respective payment would otherwise have been required, such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, the applicable organizational document or agreement or the applicable other impediment, then an amount equal to such amount of Net Available Cash so permitted to be repatriated will be promptly applied (net of any taxes, costs or expenses that would be payable or reserved against if such amounts were actually repatriated whether or not they are repatriated) in compliance with this covenant and (ii) to the extent that and for so long as the Company has determined in good faith that repatriation of any or all of the Net Available Cash of any Foreign Disposition would have a non-de minimis adverse tax or cost consequence to the Company or any of its Subsidiaries or any Affiliates or direct or indirect equity owners thereof (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation in the year of such repatriation), including any withholding tax, with respect to such Net Available Cash if such amount were repatriated as a dividend, the Net Available Cash so affected will not be required to be applied in compliance with this covenant, and such amounts may be retained by the applicable Foreign Subsidiary. The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default. For the avoidance of doubt, nothing in this Indenture shall be construed to require the Company or any Subsidiary to repatriate cash.
(d) Any Net Available Cash from an Asset Sale (other than any amounts excluded from this covenant as set forth in Section 4.12(c)) that is not invested or applied as provided and within the time period set forth in Section 4.12(b) will be deemed to constitute “Excess Proceeds”; provided that any amount of Net Available Cash offered to holders of the Notes pursuant to Section 4.12(b)(ii) shall not be deemed to be Excess Proceeds regardless of whether such offer is made accepted by any holders. When the aggregate amount of Excess Proceeds exceeds the greater of (x) $300.0 million and (y) 3.5% of Consolidated Net Tangible Assets (the “Excess Proceeds Threshold”), the Issuer shall make an offer (an “Asset Sale Offer”) to all holders of the Notes and, if required or permitted by the terms of any Debt that ranks pari passu in right of payment with the Notes (“Pari Passu Indebtedness”), to the holders of such Pari Passu Indebtedness, to purchase the maximum aggregate principal amount (or accreted value, as applicable) of the Notes and such Pari Passu Indebtedness that is in an amount equal to $2,000, or an integral multiple of $1,000 in excess thereof that may be purchased out of the Excess Proceeds at an offer price, in the case of the Notes, in cash in an amount equal to 100.0% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture, and in the case of such Pari Passu Indebtedness, at the offer price required by the terms thereof, in accordance with the procedures set forth in the next paragraph agreement(s) governing such Pari Passu Indebtedness. The Issuer will commence an Asset Sale Offer with respect to Excess Proceeds within 20 Business Days after the date that Excess Proceeds exceed the Excess Proceeds Threshold by delivering to the holders the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. The Issuer may satisfy the foregoing obligations with respect to any Net Available Cash from an Asset Sale by making an Asset Sale Offer with respect to such Net Available Cash prior to the time period that may be required by this Indenture with respect to all holders or a part of other unsecured Indebtedness issued the available Net Available Cash (the “Advance Portion”) in advance of being required to do so by the Company; orthis Indenture (an “Advance Offer”).
(3e) To the extent that the aggregate amount (or accreted value, if applicable) of Notes and Pari Passu Indebtedness, as the case may be, tendered pursuant to invest an Asset Sale Offer is less than the amount offered in Productive Assets; provided the Asset Sale Offer (or in the case of an Advance Offer, the Advance Portion), the Issuer may use any remaining Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) for any purposes not otherwise prohibited under this Indenture. If the aggregate principal amount (or accreted value, if applicable) of Notes or the Pari Passu Indebtedness, as the case may be, surrendered by such holders thereof exceeds the amount offered in the Asset Sale Offer (or in the case of an Advance Offer, the Advance Portion), the Issuer shall purchase the Notes (subject to applicable DTC procedures as to global notes) and such Pari Passu Indebtedness, as the case may be, on a pro rata basis based on the aggregate principal amount (or accreted value, if applicable) of the Notes or such Pari Passu Indebtedness, as the case may be, tendered with adjustments as necessary so that no Notes or Pari Passu Indebtedness, as the case may be, will be repurchased in part in an unauthorized denomination. Upon completion of any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that Offer (1) pending the final application of or Advance Offer), the amount of Excess Proceeds that resulted in the requirement to make an Asset Sale Offer shall be reset to zero (regardless of whether there are any remaining Excess Proceeds upon such Applicable completion). Upon consummation or expiration of any Asset Sale Offer, any remaining net proceeds shall not be deemed Excess Proceeds and the Issuer may use such net proceeds for any purpose not otherwise prohibited under this Indenture.
(f) Within five (5) Business Days after the Issuer is obligated to make an Asset Sale Offer as described in the preceding paragraph, the Issuer shall send a written notice, by first-class mail or electronic delivery, to the Holders, with a copy to the Trustee, accompanied by such information regarding the Company and its Subsidiaries as the Issuer in good faith believes will enable such holders to make an informed decision with respect to such Asset Sale Offer. Such notice shall state, among other things, the purchase price and the repurchase date, which shall be, subject to any contrary requirements of applicable law, a Business Day no earlier than 10 days nor later than 60 days from the date such notice is mailed or delivered electronically.
(g) The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to thisthis covenant. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this covenant, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this covenant by virtue thereof.
Appears in 2 contracts
Limitation on Asset Sales. The Company (a) Parent shall not, and shall not permit any of its the Restricted Subsidiaries to, consummate an any Asset Sale Sale, unless:
(1) the Company consideration received by Parent or such Restricted Subsidiary receives consideration at the time of such Asset Sale is at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(32) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form consists of cash, Temporary Cash Equivalents Investments or readily marketable securities. Replacement Assets, or a combination of cash, Temporary Cash Investments or Replacement Assets; provided, however, with respect to the sale of one or more properties that up to 75% of the consideration may consist of Indebtedness of the purchaser of such properties so long as such Indebtedness is secured by a first priority Lien on the property or properties sold.
(b) For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a1) any liabilities of Parent or the Restricted Subsidiaries (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet) sheet of Parent and the Company or any Restricted Subsidiary thereof (Subsidiaries other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Guaranty) that are assumed by the transferee of any such assets pursuant to a customary novation an agreement that releases the Company Parent or any such Restricted Subsidiary from further liabilityliability with respect to such liabilities or that are assumed by contract or operation of law;
(b2) any securities, notes or other obligations received by the Company Parent or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Parent or such Restricted Subsidiary into cash, cash or Temporary Cash Equivalents or readily marketable securities Investments within 180 days after receipt thereof (to the extent of the cash, cash or Temporary Cash Equivalents or readily marketable securities Investments received in that conversion);
(c) Productive Assets; and
(d3) any Designated Noncash Non-Cash Consideration received by the Issuers Parent or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (d3) that is at that the time outstanding, not to exceed the greater of (ix) $4.5 billion 50,000,000 and (iiy) 3.02.0% of the Issuers’ Adjusted Total AssetsAssets at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value. .
(c) Within 450 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company Parent or a any such Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Cash Proceeds”) at its option:
(1) to repay prepay, repay, redeem or otherwise retire debt under the Credit Facilities or any other purchase Pari Passu Indebtedness of the Restricted Subsidiaries of the Company Issuers or a Subsidiary Guarantor that is Secured Indebtedness (in each case other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary owed to the Issuers or an Affiliate of the CompanyIssuers);
(2) to repay make an Investment in (provided such Investment is in the form of Capital Stock), or to acquire all or substantially all of the assets of, a Person engaged in a Permitted Business if such Person is, or will become as a result thereof, a Restricted Subsidiary;
(3) to prepay, repay, redeem or purchase Pari Passu Indebtedness of Parent, an Issuer or of any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor; provided, however, that if Parent, the Issuers or a Subsidiary Guarantor shall so prepay, repay, redeem or purchase any such Pari Passu Indebtedness, the Issuers shall equally and ratably reduce obligations under the Notes if the Notes are then prepayable or, if the Notes may not then be prepaid, the Issuers shall make an offer (in accordance with the procedures set forth below) with the ratable proceeds to all Holders to purchase their Notes at 100% of the principal amount thereof, plus accrued but unpaid interest, if any, thereon, up to the principal amount of Notes that would otherwise be prepaid;
(4) to fund all or a portion of an optional redemption of the Notes pursuant to Section 5 of the Notes;
(5) to make a capital expenditure;
(6) to acquire Replacement Assets to be used or that are useful in a Permitted Business; or
(7) any combination of the foregoing; provided that the Issuers shall be deemed to have complied with the provisions described in clauses (2), (5) and (6) of this paragraph if and to the extent that, within 365 days after the Asset Sale that generated the Net Cash Proceeds, Parent or any of the Restricted Subsidiaries has entered into and not abandoned or rejected a binding agreement to acquire the assets or Capital Stock of a Permitted Business, acquire Replacement Assets or make a capital expenditure in compliance with the provisions described in clauses (2), (5) and (6) of this paragraph (each an “Acceptable Commitment”), and that Acceptable Commitment (or a replacement commitment should the Acceptable Commitment be subsequently cancelled or terminated for any reason) is thereafter completed within 180 days after the end of such 365-day period. Pending the final application of any such Net Cash Proceeds, the Issuers may temporarily reduce the revolving Indebtedness under any Credit Facility or otherwise retire unsecured Indebtedness invest such Net Cash Proceeds in any manner that is not prohibited by this Indenture. The amount of such excess Net Cash Proceeds required to be applied (or to be committed to be applied) during such 365-day period as set forth in this paragraph (c) and not so applied by the end of such period shall constitute “Excess Proceeds.”
(d) When the aggregate amount of Excess Proceeds exceeds $25,000,000, the Issuers shall make an offer to all holders of the CompanyNotes and, so long as if required by the terms of any Indebtedness that is Pari Passu Indebtedness, to the holders of such Pari Passu Indebtedness on a pro rata basis (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, that may be purchased out of the Excess Proceeds at an offer is made price in cash in an amount equal to 100.0% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuers will commence an Asset Sale Offer with respect to Excess Proceeds within 20 Business Days after the next paragraph date that Excess Proceeds exceed $25,000,000 by delivering the notice required pursuant to all holders the terms of other unsecured Indebtedness issued this Indenture, with a copy to the Trustee. The Issuers may satisfy the foregoing obligations with respect to any Excess Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Excess Proceeds prior to the Company; orexpiration of the relevant 365 days or with respect to Excess Proceeds of $25,000,000 or less.
(3e) To the extent that the aggregate amount of Notes and such Pari Passu Indebtedness tendered pursuant to invest in Productive Assets; provided that an Asset Sale Offer is less than the Excess Proceeds, Parent and the Restricted Subsidiaries may use any remaining Excess Proceeds for any purpose not prohibited by this Indenture. If the aggregate principal amount of Notes or the Pari Passu Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Issuers shall select such Pari Passu Indebtedness to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such Pari Passu Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds that resulted in the Asset Sale Offer shall be reset to zero. Parent may satisfy the foregoing obligation with respect to any Net Cash Proceeds which prior to the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days expiration of the applicable relevant 365 day period (as such period may be extended in accordance with this Indenture). Nothing in this paragraph shall preclude the Issuers from making an Asset Sale may be invested in Productive Assets within two years Offer even if the amount of such Excess Proceeds not previously subject to an Asset Sale; provided that Sale Offer pursuant to this Section 4.11 covenant totals less than $25,000,000.
(1f) pending Pending the final application of the amount of any such Applicable Net Cash Proceeds pursuant to thisthis Section 4.11, the holder of such Net Cash Proceeds may apply such Net Cash Proceeds temporarily to reduce Indebtedness outstanding under a revolving Indebtedness under any Credit Facility or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture.
(g) The Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuers will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 2 contracts
Sources: Indenture (Ryman Hospitality Properties, Inc.), Indenture (Ryman Hospitality Properties, Inc.)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such a Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such the fair market value is determined by (a) an executive officer of the General Partner if the value is less than $20.0 million and evidenced by an Officers’ Certificate delivered to the Holders, or (b) the Company’s Board of Directors if the value is $20.0 million or more and evidenced by a resolution of the Board of Directors of set forth in an Officers’ Certificate delivered to the CompanyHolders; and
(3) at least 75% of the aggregate consideration from such received by the Company and its Restricted Subsidiaries in the Asset Sale, together with Sale and all other Asset Sales since the Issue Date on a cumulative basis (including by way date of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary this Indenture is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11provision, each of the following shall will be deemed to be cash:
(a) any liabilities (liabilities, as shown on the Company’s or such any Restricted Subsidiary’s most recent balance sheet) , of the Company or any Restricted such Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are are, within 90 days after the Asset Sale, converted by the recipient thereof Company or such Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a any Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such those Net Proceeds (the “Applicable Proceeds”) at its optionoption to any combination of the following:
(1I) to repay repay, redeem, repurchase or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company)Senior Debt, including Notes;
(2II) to repay acquire all or otherwise retire unsecured Indebtedness substantially all of the Companyproperties or assets of a Person primarily engaged in a Permitted Business;
(III) to acquire a majority of the Voting Stock of a Person primarily engaged a Permitted Business;
(IV) to make capital expenditures; or
(V) to acquire other long-term assets that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, so long the Company or any Restricted Subsidiary may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as a pro rata offer is made in accordance with the procedures set forth provided in the next preceding paragraph will constitute “Excess Proceeds.” On the 361st day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $20.0 million, the Company will make an Asset Sale Offer to all Holders, and to all holders of other unsecured Pari Passu Indebtedness issued by then outstanding, to purchase the Company; or
(3) to invest in Productive Assets; provided that any such maximum principal amount of Net Notes and such 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 principal amount plus accrued and unpaid interest, if any, to the Settlement Date, and will be payable in cash. If any Excess Proceeds which remain after consummation of an Asset Sale Offer, the Company or a any Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of the applicable Notes and Pari Passu Indebtedness tendered into such Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Offer exceeds the amount of Excess Proceeds, the Issuers will select the Notes and such Pari Passu Indebtedness to be purchased on a pro rata basis as set forth in Section 3.09(h). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such Applicable Proceeds pursuant to thisprovisions by virtue of such conflict.
Appears in 2 contracts
Sources: Indenture (Global Partners Lp), Indenture (Global Partners Lp)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an any Asset Sale Sales, unless:
(1) no Default shall have occurred and be continuing or would occur as a result of such Asset Sale;
(2) the consideration received by the Company or such Restricted Subsidiary receives consideration at Subsidiary, as the time of such Asset Sale case may be, is at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(23) in the case of an Asset Sale that constitutes an Asset Disposition, the Company could Incur at least US$1.00 of Indebtedness under Section 4.06(a) after giving pro forma effect to such fair market value is determined by the Board of Directors of the CompanyAsset Disposition; and
(34) at least 75% of the consideration from such received consists of cash, Temporary Cash Investments or Replacement Assets; provided that in the case of an Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by Sale in which the Company or such Restricted Subsidiary receives Replacement Assets (i) the Company delivers to the Trustee an Officer’s Certificate stating that (a) the Company’s chief executive officer or chief financial officer has approved such Asset Sale, (b) such Asset Sale is on fair and reasonable terms on an arm’s length basis, and (c) the Fair Market Value of the Replacement Assets, together with any cash consideration is no less than the Fair Market Value of the assets subject to such Asset Sale, and (ii) with respect to any such Asset Sale involving an aggregate consideration with a Fair Market Value in excess of US$25,000,000 (or the form Dollar Equivalent thereof), the Company shall deliver to the Trustee an opinion as to the fairness to the Company or such Restricted Subsidiary of cash, Cash Equivalents or readily marketable securitiessuch Asset Sale from a financial point of view issued by an Independent Financial Advisor. For purposes of this Section 4.11clause (4), each of the following shall will be deemed to be cash:
(ai) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet) sheet prepared in accordance with IFRS, of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are actually assumed by the transferee of any such assets pursuant to a customary customary, assumption, assignment, novation or similar agreement that fully and unconditionally releases the Company or such Restricted Subsidiary from further liability;; and
(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 recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);.
(cb) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or a the applicable Restricted Subsidiary thereof Subsidiary, as the case may be) may apply an amount equal to the Applicable Percentage of such Net Cash Proceeds (the “Applicable Proceeds”) at its optionto:
(1) to permanently repay or otherwise retire debt under the Credit Facilities or any other Senior Indebtedness of the Company or any Restricted Subsidiaries of Subsidiary (and, if such Senior Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto) in each case owing to a Person other than the Company (other than Indebtedness represented solely by a guarantee of or a Restricted Subsidiary of the Company);Subsidiary; or
(2) make an Investment in Replacement Assets, provided that such Investment occurs within 360 days following the receipt of such Net Cash Proceeds.
(c) Pending the final application of any Net Cash Proceeds from an Asset Sale in excess of US$10,000,000, the Company shall deposit and invest such Net Cash Proceeds in the Mandatory Prepayment Account.
(d) Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in paragraph (b) will constitute “Excess Proceeds.” Excess Proceeds of less than US$5,000,000 (or the Dollar Equivalent thereof) will be carried forward and accumulated. When the aggregate amount of Excess Proceeds exceeds US$10,000,000 (or the Dollar Equivalent thereof), within 10 days thereof, the Company must make an Offer to repay or otherwise retire unsecured Purchase to all Holders (and, with respect to Indebtedness of the Company, so long as a pro rata offer is made in accordance with that ranks equally with, or senior to, the procedures Notes, containing provisions similar to those set forth in the next paragraph Indenture with respect to all offers to purchase or redeem with the proceeds of sales of assets, to the holders of such Indebtedness, including any Permitted Priority Secured Indebtedness) to purchase the maximum principal amount of Notes (and any such other unsecured Indebtedness issued pari passu Indebtedness) that may be purchased out of the Excess Proceeds. The offer price in any Offer to Purchase will be equal to 100% of the principal amount plus accrued and unpaid interest to the date of purchase, and will be payable in cash.
(e) If any Excess Proceeds remain after consummation of an Offer to Purchase, the Company may use those Excess Proceeds for any purpose not otherwise prohibited by the Company; or
(3) to invest in Productive Assets; provided that any such Indenture. If the aggregate principal amount of Net Proceeds which the Company Notes (and any other pari passu or a Restricted Subsidiary thereof has committed senior Indebtedness) tendered in such Offer to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Purchase exceeds the amount of Excess Proceeds, the Trustee will select the Notes (and such other pari passu or senior Indebtedness) to be purchased on a pro rata basis or in accordance with applicable Depositary procedures. Upon completion of each Offer to Purchase, the amount of Excess Proceeds will be reset at zero.
(f) Notwithstanding the foregoing, the Company will not, and will not permit any such Applicable Proceeds pursuant to thisRestricted Subsidiary to, sell, transfer or otherwise dispose of any shares of Capital Stock of Sino-Forest (China) Investments Limited or of any Restricted Subsidiary that owns directly or indirectly any shares of Capital Stock of Sino-Forest (China) Investments Limited.
Appears in 2 contracts
Sources: Indenture, Indenture (Emerald Plantation Holdings LTD)
Limitation on Asset Sales. (a) The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company Issuer or such the applicable Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed ofof (as determined in good faith by the Issuer’s Board of Directors);
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration received by the Issuer or the Restricted Subsidiary, as the case may be, from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is Sale shall be in the form of cash, cash or Cash Equivalents or readily marketable securitiesand shall be received at the time of such disposition. For purposes of this Section 4.11clause (2), each of the following shall be deemed to be cash:
(aA) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet) sheet of the Company Issuer or any Restricted Subsidiary thereof (or would be shown on such consolidated balance sheet as of the date of such Asset Sale), other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) Notes or any Guarantee, or any Guarantees of Indebtedness of Persons other than the Issuer or any Restricted Subsidiary, that are assumed by the transferee of any person acquiring such assets pursuant to a customary novation agreement the extent that releases the Company or Issuer and its Restricted Subsidiaries have no further liability with respect to such Restricted Subsidiary from further liabilityliabilities;
(bB) any securities, notes or other obligations received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Issuer or such Restricted Subsidiary into cash, cash or Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, cash or Cash Equivalents or readily marketable securities received in that conversion);
(creceived) Productive Assetswithin 90 days after receipt; and
(dC) any Designated Noncash Non-Cash Consideration received by the Issuers Issuer or any its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (dC) that is at that time outstandingoutstanding in the aggregate, not to exceed the greater of (i) $4.5 billion 25.0 million and (ii) 3.01.0% of the Issuer’s Consolidated Total Assets, in each case at the time of receipt of such Designated Non-Cash Consideration, with the fair market value Fair Market Value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value. Within 450 days after ;
(3) upon the receipt consummation of any Net Proceeds from an Asset Sale, the Company Issuer shall apply, or a cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof may apply either:
(A) to permanently reduce Indebtedness (x) under any Credit Facility and in the case of any such Indebtedness under any revolving credit facility effect a permanent reduction in the availability under such revolving credit facility (provided, however that, if there shall not be any term loan indebtedness outstanding under any Credit Facility, in the case of such Indebtedness under any revolving credit facility such prepayment shall not be required to effect a permanent reduction in the availability under such revolving credit facility) or (y) of a Subsidiary that does not guarantee the Notes;
(B) to make an amount equal investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale or in properties and assets (including Capital Stock) that will be used in the business of the Issuer and its Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably related thereto (“Replacement Assets”); provided that, in the case of this clause (B), a binding commitment shall be treated as a permanent application of the Net Cash Proceeds from the date of such commitment so long as the Issuer or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”); provided further that if any Acceptable Commitment is later cancelled or terminated for any reason before such Net Cash Proceeds are applied, then such Net Cash Proceeds shall constitute part of the Applicable Percentage Net Proceeds Offer Amount if not otherwise applied as provided above within 365 days of the receipt of such Net Cash Proceeds; or
(C) a combination of prepayment and investment permitted by the foregoing clauses (3)(A) and (3)(B).
(b) On the 366th day (or, in the event of an Acceptable Commitment, the 546th day) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Issuer or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in Sections 4.10(a)(3)(A), (3)(B) and (3)(C) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Cash Proceeds that have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in Sections 4.10(a)(3)(A), (3)(B) and (3)(C) or the last proviso of this paragraph (each, a “Net Proceeds Offer Amount”) shall be applied by the Issuer or such Restricted Subsidiary to make an offer to purchase (the “Applicable ProceedsNet Proceeds Offer”) to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum amount of Notes and Pari Passu Indebtedness that may be purchased with the Net Proceeds Offer Amount at a price equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration received by the Issuer or any Restricted Subsidiary of the Issuer, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10.
(c) The Issuer may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $25.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $25.0 million, shall be applied as required pursuant to this Section 4.10(c)).
(d) In the event of the transfer of substantially all (but not all) of the property and assets of the Issuer and its optionRestricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, which transaction does not constitute a Change of Control, the successor entity shall be deemed to have sold the properties and assets of the Issuer and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Issuer or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(e) Notwithstanding Sections 4.10(a) and 4.10(b), the Issuer and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness at least 75% of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);consideration for such Asset Sale constitutes Replacement Assets; and
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer such Asset Sale is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assetsfor fair market value; provided that any such amount consideration not constituting Replacement Assets received by the Issuer or any of Net Proceeds which the Company or a its Restricted Subsidiary thereof has committed to invest Subsidiaries in Productive Assets within 450 days of the applicable connection with any Asset Sale may permitted to be invested in Productive Assets within two years consummated under this Section 4.10(e) shall constitute Net Cash Proceeds subject to the provisions of such Asset Sale; provided that (1Sections 4.10(a) pending the final application of the amount of any such Applicable Proceeds pursuant to thisand 4.10(b).
Appears in 2 contracts
Sources: Indenture (Manitowoc Foodservice, Inc.), Indenture (Manitowoc Co Inc)
Limitation on Asset Sales. (A) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such the applicable Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed ofof (as determined in good faith by the Company's Board of Directors);
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or the Restricted Subsidiary, as the case may be, from such Restricted Subsidiary is Asset Sale shall be in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following Replacement Assets and shall be deemed to be cashreceived at the time of such disposition; provided that:
(a) the amount of any liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any such Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the NotesNotes or any Guarantee of a Guarantor) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;assets, and
(b) the fair market value of any securities, notes securities or other obligations assets received by the Company or any such Restricted Subsidiary from in exchange for any such transferee assets that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities cash within 180 days after receipt thereof (such Asset Sale, shall be deemed to the extent be cash for purposes of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assetsthis provision; and
(d3) any Designated Noncash Consideration received by upon the Issuers 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) that is at that time outstanding, not to exceed the greater consummation of (i) $4.5 billion and (ii) 3.0% of Total Assets, 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. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company shall apply, or a cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof (provided that if the Company or such Restricted Subsidiary, as the case may be, has entered into an agreement in definitive form to so apply such Net Cash Proceeds, the transaction contemplated by such agreement must be consummated within the later of such 365 day period and 120 days from the date of the execution of such agreement) either:
(a) to repay any Obligations under the Credit Agreement or any Guarantor Senior Debt and, in the case of any such Indebtedness under a revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility;
(b) to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale or in properties and assets (including Capital Stock) that will be used in the business of the Company and its Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably related thereto ("Replacement Assets"); and/or
(c) a combination of repayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(B) Pending the final application of such Net Cash Proceeds, the Company may temporarily reduce borrowings under the Credit Agreement or any other revolving credit facility, if any. On the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (3)(a), (3)(b) and (3)(c) of paragraph (A) above or, in the event that a definitive agreement has been entered into prior to such 366th day pursuant to which the Net Cash Proceeds are to be applied, on the later of the 366th day and the 121st day after the execution of such agreement (each, a "Net Proceeds Offer Trigger Date"), such aggregate amount of Net Cash Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(a), (3)(b) and (3)(c) of the preceding paragraph (each a "Net Proceeds Offer Amount") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the "Net Proceeds Offer") to all Holders and, to the extent required by the terms of any Pari Passu Debt, an offer to purchase to all holders of such Pari Passu Debt, on a date (the "Net Proceeds Offer Payment Date") not less than 30 nor more than 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of any such Pari Passu Debt) on a pro rata basis, that amount of Notes (and Pari Passu Debt) equal to the Applicable Percentage Net Proceeds Offer Amount at a price equal to 100% of the principal amount of the Notes (and Pari Passu Debt) to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase.
(C) If at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder as of the date of such conversion or disposition and the Net Cash Proceeds thereof shall be applied in accordance with this Section 1015.
(D) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $15.0 million resulting from one or more Asset Sales (at which time the “Applicable Proceeds”entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $15.0 million, shall be applied as required pursuant to this Section 1015).
(E) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 801, which transaction does not constitute a Change of Control, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for the purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 1015.
(F) If any Net Cash Proceeds remain after the consummation of any Net Proceeds Offer, the Company may use such Net Cash Proceeds for any purpose not otherwise prohibited by this Indenture without regard to this Section 1015. Upon completion of each Net Proceeds Offer, the Net Proceeds Offer Amount will be reset to zero.
(G) In the event the Company or any of its Restricted Subsidiaries consummate a single Asset Sale for which the Company or its Restricted Subsidiaries receive aggregate consideration at the time of such Asset Sale in excess of $100.0 million, the Company or such Restricted Subsidiary, as the case may be, shall, prior to the consummation thereof, obtain a favorable opinion as to the fairness of such Asset Sale to the Company or the relevant Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and file the same with the Trustee.
(H) Notwithstanding paragraphs (A) and (B) of this Section 1015, the Company and its optionRestricted Subsidiaries will be permitted to enter into and consummate an Asset Swap without complying with such paragraphs to the extent that:
(1) at the time of entering into such Asset Swap or immediately after giving effect to repay such Asset Swap, no Default or otherwise retire debt under the Credit Facilities Event of Default shall have occurred or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by be continuing or would occur as a guarantee of a Restricted Subsidiary of the Company);consequence thereof, and
(2) to repay or otherwise retire unsecured Indebtedness in the event that such Asset Swap involves an aggregate amount in excess of $10.0 million, a majority of the Company, so long as a pro rata offer is made in accordance with members of the procedures set forth in the next paragraph to all holders Board of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount Directors of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of shall have approved the applicable Asset Sale may be invested in Productive Assets within two years terms of such Asset Sale; provided Swap and determined that (1) pending the final application consideration received in such Asset Swap is at least equal to the fair market value of the amount assets disposed of in such Asset Swap.
(I) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any such Applicable Proceeds pursuant securities laws or regulations conflict with this Section 1015, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to thishave breached its obligations under this Section 1015 by virtue thereof.
Appears in 2 contracts
Sources: Second Supplemental Indenture (Dole Food Co Inc), Second Supplemental Indenture (Dole Food Company Inc)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale (including a Collateral Disposition), unless:
(1) the Company (or such Restricted Subsidiary the Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests Capital Stock issued or sold or otherwise disposed of; provided, that in the case of a Collateral Disposition of any Property set forth in Category 1 on Annex I hereto (or Capital Stock of a Subsidiary that, directly or indirectly, owns any such Property), the Company (or the Subsidiary) receives consideration at the time of the Asset Sale that is at least equal to the greater of (i) the release price of such Property set forth on Annex II hereto and (ii) the Fair Market Value of the Collateral sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such received in the Asset Sale, together with all Sale (other than an Asset Sales since Sale of Properties set forth in Category 4 on Annex I hereto that are owned by a Subsidiary of the Issue Date Company and Category 8 on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwiseAnnex I hereto) received by the Company or such Restricted Subsidiary is in the form of cashcash or cash equivalents;
(3) funds in an amount equal to the Net Available Cash are deposited directly in a deposit account subject to a valid and perfected Lien in favor of the Collateral Agent free of any other Lien (other than the Lien of the Secured Debt Documents or any other Permitted Collateral Lien); and
(4) in the case of an Asset Sale of Capital Stock of a Subsidiary, Cash Equivalents such Asset Sale constitutes a disposition of all Capital Stock of such Subsidiary owned by the Company or readily marketable securitiesany Subsidiary; provided, that any Collateral Disposition constituting any Event of Loss, loss, destruction, damage, condemnation, confiscation, requisition, seizure, forfeiture or taking of title to or use of Collateral shall not be required to satisfy the conditions set forth in clauses (1) or (2) of this paragraph. For the purposes of this Section 4.114.03, each of the following shall be are deemed to be cashcash or cash equivalents:
(a1) any liabilities (as shown on solely in the Company’s case of an Asset Sale not constituting a Collateral Disposition of Property Collateral, the assumption or such Restricted Subsidiary’s most recent balance sheet) discharge of Indebtedness of the Company or any Restricted Subsidiary thereof of a Guarantor (other than unsecured Indebtedness, Junior Lien Debt, contingent liabilities and liabilities that are by their terms subordinated in right of payment to the NotesNotes or any Subsidiary Guarantee and obligations in respect of Disqualified Stock of the Company) that are assumed by the transferee or any Indebtedness of any Subsidiary that is not a Guarantor (other than obligations in respect of Disqualified Stock of such assets pursuant to a customary novation agreement that releases Subsidiary) and the Company release of the Company, such Guarantor or such Restricted Subsidiary from further liabilityall liability on such Indebtedness in connection with such Asset Sale;
(b2) in the case of an Asset Sale of a Property set forth in Category 3, Category 4 or Category 7 on Annex I hereto by the Subsidiary or Joint Venture owning such Property, the principal amount of any Indebtedness of such Subsidiary or Joint Venture repaid with the proceeds of such Asset Sale solely to the extent such Indebtedness has been incurred pursuant to Section 4.02(b)(3), (8), or (9) and has been secured by a Permitted Lien on such Property and on the Capital Stock in such Subsidiary incurred pursuant to clause (2) of the definition of Permitted Liens; and
(3) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such the transferee that are promptly converted by the recipient thereof Company or such Subsidiary into cash, Cash Equivalents or readily marketable securities cash within 180 days after receipt thereof (of the closing of such Asset Sale, to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion. The Company will not permit any Subsidiary to issue any Capital Stock of such Subsidiary to, or otherwise permit any such Capital Stock to be owned by, any Person other than the Company or any Subsidiary Guarantor, except upon a Collateral Disposition of all such Capital Stock to such a Person that complies with this Section 4.03. Pending the final application of any Net Available Cash from an Asset Sale (including a Collateral Disposition but excluding any Asset Sale of a Property, or of the Capital Stock of a Subsidiary solely owning a Property, set forth in Category 8 on Annex I hereto) or a Joint Venture Disposition, upon the receipt by the Company or a Subsidiary of the Net Available Cash attributable to an Asset Sale or a Joint Venture Disposition, the Company shall cause, or shall cause such Subsidiary to cause, such amounts (such amounts, the “Pending Use Cash”) to be deposited directly by the Company or such Subsidiary in a deposit account subject to a valid and perfected Lien in favor of the Collateral Agent free of any other Lien (other than the Lien of the Secured Debt Documents or any other Permitted Collateral Lien), and the Pending Use Cash will constitute Collateral pending application as a Permitted Excess Cash Use or as hereinafter described. Within 360 days (or 720 days with respect to an Event of Loss) after the actual receipt of any Net Available Cash by the Company or a Subsidiary from an Asset Sale (including an Event of Loss and a Collateral Disposition but excluding any Asset Sale of a Property, or of the Capital Stock of a Subsidiary solely owning a Property, set forth in Category 8 on Annex I hereto) or a Joint Venture Disposition, the Company (or the applicable Subsidiary, as the case may be) may apply such Net Available Cash (each such application a “Permitted Excess Cash Use”):
(A) to acquire all or substantially all of the assets of, or any Capital Stock of, another Related Business, if, after giving effect to any such acquisition of Capital Stock, the Related Business is or becomes a Subsidiary of the Company (such assets or Capital Stock, “Related Business Assets”);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1B) to repay make a capital expenditure to construct or otherwise retire debt under the Credit Facilities improve assets used or any other Indebtedness of the Restricted Subsidiaries of the Company useful in a Related Business (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Companysuch assets, “CapEx Assets”);
(2C) to repay acquire other Additional Assets (such Related Business Assets, CapEx Assets, Additional Assets or otherwise retire unsecured Indebtedness Specified Property referenced in clauses (A), (B), (C) and (E), collectively, the “Permitted Excess Cash Use Assets”);
(D) to fund distributions to qualify, or maintain the qualification of the REIT or any other parent of the Company, so long as a pro rata offer real estate investment trust for U.S. federal income tax purposes as such Permitted Excess Cash Use in this clause (D) is made approved in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued good faith by the CompanyBoards of Directors of both the Company and the REIT; provided that (x) the amount required to fund distributions shall take into account the extent to which the REIT may issue stock dividends that qualify for deduction under Code Section 561(a); (y) the aggregate cash amount under this clause (D) does not exceed $10 million in any calendar year; and (z) no Event of Default shall have occurred and be continuing or would occur as a consequence thereof; or
(3E) to invest repay at a discount any Non-Recourse Mortgage Indebtedness or Recourse Indebtedness of any Excluded Non-Guarantor Subsidiary owning any Property that immediately prior to such repayment does not constitute Collateral (such Property, “Specified Property”) to the extent such Permitted Excess Cash Use in Productive Assets; provided that any such amount this clause (E) is approved in good faith by the Boards of Net Proceeds which Directors of both the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of and the applicable Asset Sale may be invested in Productive Assets within two years of such Asset SaleREIT; provided that (1x) pending the final application as a result of such repayment, such Non-Recourse Mortgage Indebtedness or Recourse Indebtedness is satisfied and discharged in its entirety and, simultaneously with such repayment, all Liens on such Specified Property and any other property or assets of the amount Company or any Subsidiary securing such Indebtedness are released, (y) such Specified Property shall be deemed listed under Category 1 on Annex I hereto, and the Company shall promptly deliver to the Collateral Agent the documents and certificates required by Section 4.14 and Article 11 of any such Applicable Proceeds pursuant to thisthis Indenture and (z) no Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
Appears in 2 contracts
Sources: Indenture (CBL & Associates Limited Partnership), Indenture
Limitation on Asset Sales. a. The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, consummate an any Asset Sale unless:
(1) i. the Company or such the Restricted Subsidiary receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) Property subject to such fair market value is determined by the Board of Directors of the CompanyAsset Sale; and
(3) and ii. at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by paid to the Company or such the Restricted Subsidiary in connection with such Asset Sale is in the form of cash, Temporary Cash Equivalents Investments or readily marketable securities. For purposes other cash equivalents or the assumption by the purchaser of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) as a result of which the Company and the Restricted Subsidiaries are no longer obligated with respect to such liabilities; For purposes of this Section 4.07, the following shall be considered cash:
(1) securities or other assets received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days (to the extent of the cash received in that conversion);
(2) any cash consideration paid to the Company or the Restricted Subsidiary in connection with the Asset Sale that is held in escrow or on deposit to support indemnification, adjustment of purchase price or similar obligations in respect of such Asset Sale;
(3) Productive Assets received by the Company or any Restricted Subsidiary in connection with the Asset Sale;
(4) accounts receivable of the disposed business retained by the Company or a Restricted Subsidiary, as the case may be, following an Asset Sale; provided that such accounts receivable (i) are not past due more than 90 days and (ii) do not have a payment date greater than 120 days from the date of the invoices creating such accounts receivable;
(5) any liabilities, other than Subordinated Obligations, (as shown on the Company or the Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets pursuant to a customary novation agreement or that releases are otherwise canceled or terminated in connection with the Company or such Restricted Subsidiary from further liabilityAsset Sale;
(b6) indebtedness, other than Subordinated Obligations, of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of payment of such indebtedness in connection with the Asset Sale; and
(7) any securities, notes or other obligations Designated Non-Cash Consideration received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with amount for all other Designated Noncash Consideration received pursuant to this clause (d) such Asset Sales that is at that any time outstanding, outstanding not to exceed the greater of (i) $4.5 billion 60.0 million and (ii) 3.08.0% of Total Assets, with the fair market value of each item of Designated Noncash Consideration being measured EBITDA at the time received and of receipt of such Designated Non-Cash Consideration (measured as of the last day of the fiscal quarter most recently ended prior to the date of receipt thereof for which internal financial statements are available) (without giving effect to subsequent changes any write-off or write-down thereof). The requirement set forth in value. Within 450 days after clause (a)(ii) of this Section 4.07 shall also be considered satisfied if the receipt cash received constitutes at least 75% of any Net Proceeds from an the consideration received by the Company or the Restricted Subsidiary in connection with such Asset Sale, determined on an after-tax basis.
b. The Net Available Cash (or any portion thereof) from Asset Sales may be applied by the Company or a Restricted Subsidiary, to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Debt):
i. to Repay Debt of the Company or a Restricted Subsidiary thereof may apply an amount equal (excluding, in any such case, any Debt that is owed to the Applicable Percentage Company or an Affiliate of the Company) that ranks at least pari passu in right of payment with the notes; or
ii. to acquire Productive Assets or make capital expenditures on property used or useful in the business of the Company and its Restricted Subsidiaries (including by means of an Investment in Productive Assets or capital expenditures made by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary). Pending the final application of any Net Available Cash, the Company or any of its Restricted Subsidiaries may temporarily reduce revolving credit borrowings or otherwise invest Net Available Cash in any manner that is not prohibited hereby. Any Net Available Cash from an Asset Sale not applied in accordance with the preceding paragraph within 360 days from the date of the receipt of such Net Available Cash or that the Company earlier elects to so designate shall constitute “Excess Proceeds,” provided, that a binding commitment to acquire Productive Assets or make capital expenditures pursuant to clause (b)(ii) of this Section 4.07 shall be treated as a permitted application of the Net Available Cash from the date of such commitment; provided that (i) such reinvestment is consummated within 180 days of the end of the 360-day period referred to in this sentence, and (ii) if such reinvestment is not consummated within the period set forth in subclause (i) or such binding commitment is terminated, the Net Available Cash not so applied will be deemed to be Excess Proceeds. When the aggregate amount of Excess Proceeds not previously subject to a Prepayment Offer (as defined below) exceeds $60.0 million (taking into account income earned on those Excess Proceeds, if any), the Company will be required to make an offer to purchase (the “Applicable ProceedsPrepayment Offer”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness Notes, which offer shall be in the amount of the Restricted Subsidiaries Allocable Excess Proceeds, on a pro-rata basis according to principal amount, at a purchase price equal to 100% of the Company principal amount (other than Indebtedness represented solely by a guarantee or accreted value) thereof, plus accrued and unpaid interest, if any, to the purchase date (subject to the right of a Restricted Subsidiary Holders of record on the Companyrelevant record date to receive interest due on the relevant interest payment date);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture. To the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided extent that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application 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 in accordance with this Indenture, the Company or such Restricted Subsidiary may use the remaining amount for any such Applicable purpose permitted by this Indenture and the amount of Excess Proceeds pursuant will be reset to thiszero.
Appears in 2 contracts
Sources: Indenture (Tempur Sealy International, Inc.), Indenture (Tempur Sealy International, Inc.)
Limitation on Asset Sales. The Company shall Issuers will not, and shall will not permit any of its Restricted their Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company Issuers or such Restricted Subsidiary applicable Subsidiary, as the case may be, receives consideration at the time of such Asset Sale sale or other disposition at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
of (2) such fair market value is as determined in good faith by the Board of Directors of the Company, and evidenced by a board resolution); and
(3ii) at least 75not less than 80% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary applicable Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents other than in the case where the Company is undertaking a Permitted Asset Swap; and (iii) the Asset Sale Proceeds received by the Company or readily marketable securitiessuch Subsidiary are applied (a) first, to the extent the Company or any such Subsidiary, as the case may be, elects, or is required, to prepay, repay or purchase indebtedness under the Senior Credit Facility within 180 days following the receipt of the Asset Sale Proceeds from any Asset Sale; PROVIDED that any such repayment shall result in a permanent reduction of the commitments thereunder in an amount equal to the principal amount so repaid; (b) second, to the extent of the balance of Asset Sale Proceeds after application as described above, to the extent the Company elects, to an investment in assets (including Capital Stock or other securities purchased in connection with the acquisition of Capital Stock or property of another Person) used or useful in businesses similar or ancillary to the business of the Company or any such Subsidiary as conducted on the Issue Date; PROVIDED that (1) such investment occurs or the Company or any such Subsidiary enters into contractual commitments to make such investment, subject only to customary conditions (other than the obtaining of financing), within 180 days following receipt of such Asset Sale Proceeds and (2) Asset Sale Proceeds so contractually committed are so applied within 270 days following the receipt of such Asset Sale Proceeds; and (c) third, if on such 180th day in the case of clauses (iii)(a) and (iii)(b)(1) or on such 270th day in the case of clause (iii)(b)(2) with respect to any Asset Sale, the Available Asset Sale Proceeds exceed $5 million, the Company shall apply an amount equal to such Available Asset Sale Proceeds to an offer to repurchase the Securities, at a purchase price in cash equal to 100% of the Accreted Value thereof plus accrued and unpaid interest, if any, to the purchase date (an "EXCESS PROCEEDS OFFER"). If an Excess Proceeds Offer is not fully subscribed, the Company may retain the portion of the Available Asset Sale Proceeds not required to repurchase Securities. If the Issuers are required to make an Excess Proceeds Offer, the Issuers shall mail, within 30 days following the date specified in clause (iii)(c) above, a notice to the holders stating, among other things:
(1) that such holders have the right to require the Issuers to apply the Available Asset Sale Proceeds to repurchase such Securities at a purchase price in cash equal to (x) 100% of the Accreted Value thereof, if the applicable purchase date is on or prior to September 30, 2000, or (y) 100% of the principal amount at maturity thereof, plus accrued and unpaid interest, if any, to the purchase date, if the purchase date is after September 30, 2000;
(2) the purchase date, which shall be no earlier than 30 days and not later than 45 days from the date such notice is mailed;
(3) the instructions that each holder must follow in order to have such Securities purchased;
(4) the calculations used in determining the amount of Available Asset Sale Proceeds to be applied to the purchase of such Securities;
(5) that if the Accreted Value of Securities tendered in the Asset Sale Offer exceeds the aggregate amount of Available Asset Sale Proceeds, the Issuers shall select the Securities to be purchased on a pro rata basis;
(6) that any Security not tendered will continue to accrete Accreted Value and accrue interest;
(7) that, unless the Issuers default in making payment therefor, any Security accepted for payment pursuant to the Asset Sale Offer shall cease to accrete Accreted Value and accrue interest after the purchase date;
(8) that Holders electing to have a Security purchased pursuant to the Asset Sale Offer will be required to surrender the Security, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Asset Sale Offer purchase date;
(9) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the second Business Day prior to the Asset Sale Offer purchase date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount at maturity of the Security the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Security purchased; and
(10) that Holders whose Securities are purchased only in part will be issued new Securities in a principal amount at maturity equal to the unpurchased portion of the Securities surrendered. On or before the Asset Sale Offer purchase date, the Issuers shall (i) accept for payment Securities or portions thereof tendered pursuant to the Asset Sale Offer, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price, plus accrued interest, if any, of all Securities to be purchased and (iii) deliver to the Trustee Securities so accepted together with an Officers' Certificate stating the Securities or portions thereof being purchased by the Company. The Paying Agent shall promptly mail to the Holders of Securities so accepted payment in an amount equal to the purchase price, plus accrued interest, if any, thereon. For purposes of this Section 4.114.13, each the Trustee shall act as the Paying Agent. In the event of the following transfer of substantially all of the property and assets of the Issuers and their Subsidiaries as an entirety to a Person in a transaction permitted under Article Five, the successor Person shall be deemed to be cash:
(a) any liabilities (as shown on have sold the Company’s or such Restricted Subsidiary’s most recent balance sheet) properties and assets of the Company or any Restricted Subsidiary thereof (other than contingent liabilities Issuers and liabilities that are by their terms subordinated Subsidiaries not so transferred for purposes of this covenant, and shall comply with the provisions of this covenant with respect to such deemed sale as if it were an Asset Sale. The Issuers shall comply with all tender offer rules under state and federal securities laws, including, but not limited to, Section 14(e) under the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securitiesExchange Act and Rule l4e-1 thereunder, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent applicable to such offer. To the extent that the provisions of any securities laws or regulations conflict with the cashforegoing provisions of this Indenture, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, shall comply with the fair market value of each item of Designated Noncash Consideration being measured at the time received applicable securities laws and without giving effect regulations and shall not be deemed to subsequent changes in value. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at have breached its option:
(1) to repay or otherwise retire debt obligations under the Credit Facilities or any other Indebtedness foregoing provisions of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely this Indenture by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thisvirtue thereof.
Appears in 2 contracts
Sources: Indenture (Acme Intermediate Holdings LLC), Indenture (Acme Television LLC)
Limitation on Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thisthis Section 4.11, the Company or a Restricted Subsidiary of the Company may apply such Applicable Proceeds temporarily to reduce Indebtedness (including under the Credit Facilities) or otherwise apply such Applicable Proceeds in any manner not prohibited by the Indenture, and (2) the Company or a Restricted Subsidiary of the Company, as the case may be, may elect to invest in Productive Assets prior to receiving the Applicable Proceeds attributable to any given Asset Sale (provided that such investment shall be made no earlier than the earliest of notice to the Trustee of the relevant Asset Sale, execution of a definitive agreement for the relevant Asset Sale, and consummation of the relevant Asset Sale) and deem the amount so invested to be applied pursuant to and in accordance with clause (3) above with respect to such Asset Sale. If, with respect to any Asset Sale, at the expiration of the 450-day period with respect to such Asset Sale, there remains Applicable Proceeds in excess of the greater of $250.0 million and 1.0% of Consolidated Net Tangible Assets (such amount of Applicable Proceeds that are equal to the greater of $250.0 million and 1.0% of Consolidated Net Tangible Assets, “Excess Proceeds”), the Company shall make an offer to all Holders (an “Asset Sale Offer”) and all holders of other Indebtedness that is of equal priority with the Notes containing provisions requiring offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other Indebtedness of equal priority that may be purchased out of the Excess Proceeds. For the avoidance of doubt, the Company may make an Asset Sale Offer at any time within 450 days after the receipt of any Net Proceeds from an Asset Sale, and/or prior to an Asset Sale (subject to the occurrence of an Asset Sale), or with respect to any Excess Proceeds. The offer price in any Asset Sale Offer shall be payable in cash and equal to 100.0% of the principal amount of the subject Notes plus accrued and unpaid interest and Special Interest, if any, to the date of purchase. If the aggregate principal amount of Notes and such other Indebtedness of equal priority tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes (on as nearly a pro rata basis as possible among the Notes subject to DTC procedures) and such other Indebtedness of equal priority to be purchased on a pro rata basis. If any Excess Proceeds remain after consummation of an Asset Sale Offer (such remaining Excess Proceeds, “Declined Excess Proceeds”), then the Company or any Restricted Subsidiary thereof may use such Declined Excess Proceeds for any purpose not otherwise prohibited by this Supplemental Indenture. Upon completion of any Asset Sale Offer, the amount of Applicable Proceeds and Excess Proceeds shall be reset at zero. In the event that the Company shall be required to commence an offer to Holders to purchase Notes pursuant to this Section 4.11, it shall follow the procedures specified in Section 3.09.
Appears in 2 contracts
Sources: Fourth Supplemental Indenture (Cco Holdings Capital Corp), First Supplemental Indenture (Cco Holdings Capital Corp)
Limitation on Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the CompanyCCO Holdings, so long as a pro rata offer is made in cash in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by CCO Holdings at 100% of the Companyprincipal amount thereof; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; . The amount of any Net Proceeds received from Asset Sales that are not applied or invested as provided in the preceding paragraph shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $250.0 million, the Company shall make an Asset Sale Offer to all Holders and all holders of other Indebtedness that is of equal priority with the Notes containing provisions requiring offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other Indebtedness of equal priority that may be purchased out of the Excess Proceeds, which amount includes the entire amount of the Net Proceeds. For the avoidance of doubt, CCO Holdings may make an Asset Sale Offer at any time within 450 days after the receipt of any Net Proceeds from an Asset Sale, and/or prior to an Asset Sale (1) pending subject to the final application occurrence of an Asset Sale), or with respect to any Excess Proceeds. The offer price in any Asset Sale Offer shall be payable in cash and equal to 100.0% of the principal amount of the subject Notes plus accrued and unpaid interest and Special Interest, if any, to the date of purchase. If the aggregate principal amount of Notes and such other Indebtedness of equal priority tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes (on as nearly a pro rata basis as possible among the Notes subject to DTC procedures) and such other Indebtedness of equal priority to be purchased on a pro rata basis. If any Excess Proceeds remain after consummation of an Asset Sale Offer, then the Company or any Restricted Subsidiary thereof may use such Applicable remaining Excess Proceeds for any purpose not otherwise prohibited by this Supplemental Indenture. Upon completion of any Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. In the event that the Company shall be required to commence an offer to Holders to purchase Notes pursuant to thisthis Section 4.11, it shall follow the procedures specified in Section 3.09.
Appears in 2 contracts
Sources: Fifth Supplemental Indenture (Cco Holdings LLC), Fourth Supplemental Indenture (Cco Holdings LLC)
Limitation on Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such Restricted Subsidiary the Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;; and
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 7590% of the consideration from such received in the Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securitiesReplacement Property. For purposes of this Section 4.11provision, each of the following shall be deemed to be cash:
(ai) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet) sheet of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation assignment and assumption agreement that releases the Company or such Restricted Subsidiary from further liability;
; and (bii) any securities, notes or other obligations marketable securities received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company into cash, Cash Equivalents or readily marketable securities cash within 180 days after of their receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant conversion will be deemed to this clause (d) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in valuebe cash. Within 450 720 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or a Restricted Subsidiary thereof the applicable Subsidiary, as the case may be) may apply an amount equal to the Applicable Percentage of such Net Cash Proceeds (the “Applicable Proceeds”) at its option:
(1i) to repay acquire all or otherwise retire debt under substantially all of the Credit Facilities assets of, or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company)Equity Interests of, another Person or make capital expenditures, in compliance with Section 4.17;
(2ii) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Companyacquire Replacement Property; or
(3iii) to invest any combination of the foregoing. Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in Productive Assets; provided that any such the preceding paragraph of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Net Excess Proceeds which exceeds $10.0 million, the Company or a Restricted Subsidiary thereof has committed will, within 30 days, commence an Offer to invest Purchase to all Holders of Notes equal to the Excess Proceeds. The offer price in Productive Assets within 450 days any Offer to Purchase will be equal to 100% of the applicable Asset Sale principal amount plus accrued and unpaid interest to, but not including, the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Offer to Purchase, the Company may use those funds for any purpose not otherwise prohibited by this Indenture and they will no longer constitute Excess Proceeds. If the aggregate principal amount of Notes tendered exceeds the amount of Excess Proceeds, the Trustee will select the Notes to be invested in Productive Assets within two years purchased on a pro rata basis. Upon completion of such Asset Sale; provided that (1) pending each Offer to Purchase, the amount of Excess Proceeds will be reset at zero. Pending the final application of the amount of any such Applicable Net Cash Proceeds pursuant to thisthis Section 4.10, the holder of such Net Cash Proceeds may apply such Net Cash Proceeds temporarily to reduce Debt outstanding under a revolving credit facility or otherwise invest such Net Cash Proceeds in any manner not prohibited hereunder. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and will be deemed to have complied with its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.
Appears in 2 contracts
Sources: Indenture (Toys R Us Inc), Indenture (Toys R Us Property Co I, LLC)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an make any Asset Sale unlessunless the following conditions are met:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such The Asset Sale at least equal to is for Fair Market Value, as determined in good faith by the fair market value Board of the assets or Equity Interests issued or sold or otherwise disposed of;Directors.
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at At least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way consists of relief from, cash or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securitiesreceived at closing. (For purposes of this Section 4.11clause (2), each (A) the assumption by the purchaser of the following shall be deemed to be cash:
Debt or other obligations (a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetother than Subordinated Debt) of the Company or any a Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement agreement, and instruments or securities received from the purchaser that releases are promptly, but in any event within 30 days of the Company or such Restricted Subsidiary from further liability;
(b) any securitiesclosing, notes or other obligations received converted by the Company to cash or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cashCash Equivalents, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, cash or Cash Equivalents or readily marketable securities actually so received, shall be considered cash received in that conversion);
at closing and (c) Productive Assets; and
(dB) any Designated Noncash Non-cash Consideration received by the Issuers Issuer or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (dB) that is at that time outstanding, not to exceed the greater of (ix) $4.5 billion 75.0 million and (iiy) 3.0% of Total Assets, at the time of the receipt of such Designated Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value. ).
(3) Within 450 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof Net Cash Proceeds may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:be used
(1A) to permanently repay or otherwise retire debt under secured Debt (and in the Credit Facilities or any other Indebtedness case of a revolving credit, permanently reduce the Restricted Subsidiaries of the Company (commitment thereunder by such amount), in each case owing to a Person other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a any Restricted Subsidiary, (B) to (i) reduce the Obligations under the Notes as provided under Section 3.01, (ii) to repurchase, acquire, redeem, defease, discharge or retire in any manner the Notes through open market purchases (provided that the purchase price is at least 100% (or, if issued with original issue discount, the accreted value) of the principal amount plus accrued interest), (iii) to reduce Obligations under the Notes and any Obligations under any Debt ranking pari passu in right of payment with the Notes (“pari passu Debt”) by making an Offer to Purchase the Notes and any pari passu Debt in the manner described in clause (4) below, or (iv) to repurchase, acquire, redeem, defease, discharge or retire in any manner any Debt, Disqualified Stock or Preferred Stock of any Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thisis not a Guarantor, or
Appears in 2 contracts
Sources: Senior Notes Indenture (Black Knight Financial Services, Inc.), Senior Notes Indenture (Lender Processing Services, Inc.)
Limitation on Asset Sales. For purposes of Series T Notes, Section 4.12 of the Indenture is hereby replaced and superseded by the following covenant and the following covenant shall apply to the Series T Notes: The Company shall and the Subsidiary Guarantors will not, and shall the Company and the Subsidiary Guarantors will not permit any of its or their respective Restricted Subsidiaries to, consummate an any Asset Sale Sale, unless:
(1) the Company consideration received by the Company, the Subsidiary Guarantor or such Restricted Subsidiary receives consideration at the time of such Asset Sale is at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is of as determined by the Board of Directors of the Company, in good faith; and
(32) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form consists of cash, Cash Equivalents and/or real estate assets; provided that, with respect to the sale of one or readily marketable securities. For more real estate properties, up to 75% of the consideration may consist of indebtedness of the purchaser of such real estate properties so long as such Indebtedness is secured by a first priority Lien on the real estate property or properties sold; and provided that, for purposes of this Section 4.11, each of clause (ii) the following shall be deemed to be cashamount of:
(aA) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof Indebtedness (other than contingent liabilities and liabilities that are by their terms Indebtedness subordinated in right of payment to the Notesnotes or a Subsidiary Guarantee) that are is required to be repaid or assumed (and is either repaid or assumed by the transferee of any the related assets) by virtue of such Asset Sale and which is secured by a Lien on the property or assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;sold; and
(bB) any securities, notes securities or other obligations received by the Company Company, any Subsidiary Guarantor or any such Restricted Subsidiary from such transferee that are immediately converted by the recipient thereof Company, the Subsidiary Guarantor or such Restricted Subsidiary into cashcash (or as to which the Company, Cash Equivalents any Subsidiary Guarantor or readily marketable securities within 180 days after receipt thereof (such Restricted Subsidiary has received at or prior to the extent consummation of the Asset Sale a commitment (which may be subject to customary conditions) from a nationally recognized investment, merchant or commercial bank to convert into cash within 90 days of the consummation of such Asset Sale and which are thereafter actually converted into cash within such 90-day period) will be deemed to be cash, . In the event that the aggregate Net Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration Proceeds received by the Issuers Company, any Subsidiary Guarantors or such Restricted Subsidiaries from one or more Asset Sales occurring on or after the Closing Date in any Restricted Subsidiary in period of 12 consecutive months (such 12 consecutive month period, an “Asset Sale Period”) exceed 1% of Total Assets (determined as of the date closest to the commencement of such Asset Sale having an aggregate fair market value, taken together Period for which a consolidated balance sheet of the Company and its Restricted Subsidiaries has been filed with all other Designated Noncash Consideration received the Securities and Exchange Commission or provided to the trustee pursuant to this clause (d) Section 4.2 of the Indenture), then during the period commencing 180 days prior to the commencement of such Asset Sale Period and running through the date that is at that time outstanding, not to exceed 12 months after the greater of (i) $4.5 billion and (ii) 3.0date Net Cash Proceeds so received exceeded 1% of Total Assets, an amount equal to the Net Cash Proceeds received during such Asset Sale Period must have been or must be:
(1) invested in or committed to be invested in, pursuant to a binding commitment subject only to reasonable, customary closing conditions, and providing an amount equal to the Net Cash Proceeds are, in fact, so invested, within an additional 180 days, (x) fixed assets and property (other than notes, bonds, obligations and securities) which in the good faith reasonable judgment of the Board of the Company will immediately constitute or be part of a Related Business of the Company, Subsidiary Guarantor or such Restricted Subsidiary (if it continues to be a Restricted Subsidiary) immediately following such transaction, (y) Permitted Mortgage Investments, or (z) a controlling interest in the Capital Stock of an entity engaged in a Related Business; provided that concurrently with an Investment specified in clause (z), such entity becomes a Restricted Subsidiary; or
(2) used to repay and permanently reduce Indebtedness outstanding under the Credit Facility (including that, in the case of a revolver or similar arrangement, such commitment is permanently reduced by such amount). Pending the application of any such Net Cash Proceeds as described above, the Company may invest such Net Cash Proceeds in any manner that is not prohibited by the Indenture. Any Net Cash Proceeds from Asset Sales that are not or were not applied or invested as provided in the first sentence of this paragraph (including any Net Cash Proceeds which were committed to be invested as provided in such sentence but which are not in fact invested within the time period provided) will be deemed to constitute “Excess Proceeds.” Within 30 days following each date on which the aggregate amount of Excess Proceeds exceeds $25 million, the Company will make an offer to purchase from the holders of the notes and holders of any of other Indebtedness of the Company ranking pari passu with the Securities from time to time outstanding with similar provisions requiring the Company to make an offer to purchase or redeem such Indebtedness with the proceeds from such Asset Sale, on a pro rata basis, an aggregate principal amount (or accreted value, as applicable) of Securities and such other Indebtedness equal to the Excess Proceeds on such date, at a purchase price in cash equal to 100% of the principal amount (or accreted value, as applicable) of the Securities and such other Indebtedness, plus, in each case, accrued interest (if any) to the Payment Date. To the extent that the aggregate amount of Securities and other senior Indebtedness 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 (or accreted value, as applicable) of Securities and such other Indebtedness tendered pursuant to an Asset Sale Offer exceeds the amount of Excess Proceeds, the Securities to be purchased and such other Indebtedness shall be selected on a pro rata basis. Upon completion of such Offer to Purchase, the amount of Excess Proceeds shall be reset at zero. Notwithstanding, and without complying with, any of the foregoing provisions:
(1) the Company, the Subsidiary Guarantors and its and their respective Restricted Subsidiaries may, in the ordinary course of business, convey, sell, lease, transfer, assign or otherwise dispose of inventory acquired and held for resale in the ordinary course of business;
(2) the Company, the Subsidiary Guarantors and its and their respective Restricted Subsidiaries may convey, sell, lease, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Article 5 and Section 4.13 of the Indenture;
(3) the Company, the Subsidiary Guarantors and its and their respective Restricted Subsidiaries may sell or dispose of damaged, worn out or other obsolete property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the business of the Company, the Subsidiary Guarantor or such Restricted Subsidiary, as applicable; and
(4) the Company, the Subsidiary Guarantors its and their respective Restricted Subsidiaries may exchange assets held by the Company, the Subsidiary Guarantor or a Restricted Subsidiary for one or more real estate properties and/or one or more Related Businesses of any Person or entity owning one or more real estate properties and/or one or more Related Businesses; provided that the Board of the Company has determined in good faith that the fair market value of each item of Designated Noncash Consideration being measured at the time assets received and without giving effect to subsequent changes in value. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, by the Company or a Restricted Subsidiary thereof may apply an amount are approximately equal to the Applicable Percentage fair market value of such Net Proceeds (the “Applicable Proceeds”) at its option:
assets exchanged by the Company. No transaction listed in clauses (1) through (4) inclusive shall be deemed to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such an “Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to this.”
Appears in 2 contracts
Sources: Supplemental Indenture (Host Hotels & Resorts L.P.), Supplemental Indenture (Host Hotels & Resorts, Inc.)
Limitation on Asset Sales. (a) The Company shall Issuer will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an make any Asset Sale unlessunless the following conditions are met:
(1) the Company or such Restricted Subsidiary receives consideration at Asset Sale is for fair market value, as determined as of the time date of contractually agreeing to such Asset Sale at least equal to in good faith by the fair market value Board of the assets or Equity Interests issued or sold or otherwise disposed ofManagers;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis consists of cash received at closing (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For for purposes of this Section 4.11clause (2), each of the following shall be deemed to be cash:
(a) any liabilities the assumption by the purchaser of Debt or other obligations (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetother than Subordinated Debt) of the Company Issuer or any a Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Issuer and all Restricted Subsidiary Subsidiaries from further liability;
, (b) any securities, notes instruments or other obligations securities received by the Company Issuer or any such Restricted Subsidiary from in such transferee Asset Sale that are promptly, but in any event within 270 days of the closing, converted by the recipient thereof into Issuer to cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash actually so received in that conversion);
and (c) Productive Assets; and
(d) any Designated Noncash Non-cash Consideration received by the Issuers Issuer or any Restricted Subsidiary in such Asset Sale having an aggregate fair market valuevalue (as determined in good faith by the Issuer), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (d2)(c) that is at that time outstanding, not to exceed the greater of (ix) $4.5 billion 110.0 million and (iiy) 3.0% of Net Consolidated Total Assets, Assets at the time of the receipt of such Designated Non-cash Consideration (with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value. ), shall be considered cash received at closing);
(3) Within 450 365 days after from the later of the date of consummation of an Asset Sale or the receipt of any Net Cash Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof Net Cash Proceeds may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its optionbe used:
(A) to permanently repay (1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company secured Debt (other than Funding Indebtedness represented or Non-Recourse Debt) of the Issuer or any Restricted Subsidiary or (2) solely by a guarantee to the extent such Asset Sale included assets of a Restricted Subsidiary that is not a Guarantor, Debt (other than Funding Indebtedness or Non-Recourse Debt) of any Restricted Subsidiary that is not a Guarantor (and in the case of a revolving credit, permanently reduce the commitment thereunder by such amount) in an amount not to exceed the Net Cash Proceeds in respect of the Company)assets of such Restricted Subsidiary that is not a Guarantor, and in each case owing to a Person other than the Issuer or any Restricted Subsidiary;
(2B) to repay or otherwise retire unsecured Indebtedness permanently reduce obligations under any other Debt of the CompanyIssuer that is pari passu with the Notes (other than any Disqualified Stock or Subordinated Obligations) or Debt of a Restricted Subsidiary (other than any Disqualified Stock or Subordinated Obligations of a Guarantor) (in each case other than Debt owed to the Issuer or an Affiliate of the Issuer); provided that the Issuer shall equally and ratably reduce obligations, so long under the notes as a pro rata provided under Section 3.01 through open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by making an offer is made (in accordance with the procedures set forth in the next paragraph Section 3.04 for an Asset Sale Offer) to all holders Holders to purchase their Notes at 100% of other unsecured Indebtedness issued by the Companyprincipal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of Notes that would otherwise be prepaid;
(C) to acquire all or substantially all of the assets of a Permitted Business, or a majority of the Voting Stock of another Person that thereupon becomes a Restricted Subsidiary engaged in a Permitted Business (provided that such Restricted Subsidiary is not a Securitization Entity), or to make capital expenditures or to otherwise acquire assets, including Financeable Assets and Servicing Advances, that are to be used in a Permitted Business; provided that this requirement shall be deemed satisfied if a binding commitment or an agreement is entered into within such 365 day period and the acquisition or investment is consummated within 90 days thereafter;
(D) to make an investment in any one or more businesses, properties or assets that replace the properties or assets that are the subject of such Asset Sale provided that this requirement shall be deemed satisfied if a binding commitment or an agreement is entered into within such 365- day period and the acquisition or investment is consummated within 90 days thereafter; or
(3E) to invest in Productive Assetsany combination of the foregoing; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of any such Net Cash Proceeds in accordance with clause (A), (B), (C), (D) or (E) above, the Issuer and its Restricted Subsidiaries may temporarily reduce Debt or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture; and
(4) The Net Cash Proceeds of an Asset Sale not applied or committed to be applied pursuant to clause (3) within 365 days of the Asset Sale constitute “Excess Proceeds”. Excess Proceeds of less than $40.0 million will be carried forward and accumulated. When accumulated Excess Proceeds equals or exceeds such amount, the Issuer must, within 30 days, make an offer (an “Asset Sale Offer”) to purchase Notes having a principal amount equal to:
(A) accumulated Excess Proceeds; multiplied by
(B) a fraction (x) the numerator of which is equal to the outstanding principal amount of any such Applicable Proceeds the Notes and (y) the denominator of which is equal to the outstanding principal amount of the Notes and all pari passu Debt similarly required to be repaid, redeemed or tendered for in connection with the Asset Sale, rounded down to the nearest $1,000. The purchase price for the notes will be 100% of the principal amount plus accrued interest to the date of purchase. If the Asset Sale Offer is for less than all of the outstanding notes, and notes in an aggregate principal amount in excess of the purchase amount are tendered and not withdrawn pursuant to thisthe offer, the Issuer will purchase notes having an aggregate principal amount equal to the purchase amount on a pro rata basis, by lot or such other manner in the case of global notes, as may be required by the applicable procedures of DTC; provided that only notes in minimum denominations of $2,000 principal amount or integral multiples of $1,000 in excess thereof will be purchased. Upon completion of the Asset Sale Offer, Excess Proceeds will be reset at zero, and any Excess Proceeds remaining after consummation of the Asset Sale Offer may be used for any purpose not otherwise prohibited by this Indenture.
(b) Notwithstanding the foregoing, the 75% limitation referred to in Section 4.12(a)(2) 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 the foregoing provision on an after-tax basis, if the proceeds before tax would have complied with the 75% limitation referred to in Section 4.12(a)(2).
Appears in 2 contracts
Sources: Indenture (Mr. Cooper Group Inc.), Indenture (Home Point Capital Inc.)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such a Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;; and
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 7550% of the aggregate consideration from such received by the Company and its Restricted Subsidiaries in the Asset Sale, together with Sale and all other Asset Sales since the Issue Date on a cumulative basis (including by way date of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary this Indenture is in the form of cash, cash or Cash Equivalents or readily marketable securitiesEquivalents. For purposes of this Section 4.11provision, each of the following shall will be deemed to be cash:
(a) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) , of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation an agreement that releases the Company or such Restricted Subsidiary from further liability;liability therefor; and
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are are, within 90 days after the Asset Sale, converted by the recipient thereof Company or such Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a any Restricted Subsidiary thereof may apply an amount equal those Net Proceeds at its option to any combination of the Applicable Percentage following:
(I) to repay, redeem, or repurchase Senior Debt, including the Notes;
(II) to acquire all or substantially all of the properties or assets of a Person primarily engaged in a Permitted Business;
(III) to acquire a majority of the Voting Stock of a Person primarily engaged a Permitted Business;
(IV) to make capital expenditures; or
(V) to acquire other long-term assets that are used or useful in a Permitted Business. The provisions of clauses (II), (III), (IV) or (V) of the preceding paragraph shall be deemed to be satisfied if a bona fide binding contract committing to make the acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries within the time period specified in the preceding paragraph and such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made are subsequently applied in accordance with such contract within six months following the procedures set forth date such agreement is entered into. Pending the final application of any Net Proceeds, the Company or any Restricted Subsidiary may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the next paragraph preceding paragraphs will constitute “Excess Proceeds.” On the 361st day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $50.0 million, the Company will make an Asset Sale Offer to all Holders of Notes, and to all holders of other unsecured Pari Passu Indebtedness issued by then outstanding, to purchase the Company; or
(3) to invest in Productive Assets; provided that any such maximum principal amount of Net Notes and such 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 principal amount plus accrued and unpaid interest, if any, to the Settlement Date, 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 Settlement Date, and will be payable in cash. If any Excess Proceeds which remain after consummation of an Asset Sale Offer, the Company or a any Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of the applicable Notes and Pari Passu Indebtedness tendered into such Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such Pari Passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any such Applicable Proceeds other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to thisan Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such conflict.
Appears in 2 contracts
Sources: Indenture (Chesapeake Midstream Partners Lp), Indenture (Chesapeake Midstream Partners Lp)
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiaries, directly or indirectly, to, consummate an any Asset Sale Sale, unless:
(1i) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of for such Asset Sale at least equal to the fair market value Fair Market Value (as evidenced by a Board Resolution delivered to the Trustee) of the Property or assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3ii) at least 75% 75 percent of the consideration from received in respect of such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Sale by the Company or such Restricted Subsidiary is in Subsidiary, as the form case may be, for such Property or assets consists of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities Cash Proceeds and/or Telecommunications Assets; (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetb) shares of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee publicly-traded Voting Stock of any such assets pursuant to a customary novation agreement that releases Person engaged in the Telecommunications Business in the United States; or (c) the assumption of Indebtedness of the Company or such Restricted Subsidiary (other than Indebtedness that is subordinated to the Notes) and the release of the Company or the Restricted Subsidiary, as the case may be, from further liability;all liability on the Indebtedness assumed; and
(iii) the Company or such Restricted Subsidiary, as the case may be, uses the Net Cash Proceeds from such Asset Sale in the manner set forth in Section 4.08(b) hereof.
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 360 calendar days after the receipt closing of any Net Proceeds from an Asset Sale, the Company or a such Restricted Subsidiary thereof Subsidiary, as the case may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) be, may, at its option:
(1i) reinvest an amount equal to repay or otherwise retire debt under the Credit Facilities Net Cash Proceeds, or any other portion thereof, from such Asset Sale in Telecommunications Assets or in Capital Stock of any Person engaged in the Telecommunications Business; and/or
(ii) apply an amount equal to such Net Cash Proceeds, or remaining Net Cash Proceeds, to the permanent reduction of Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of to a Restricted Subsidiary of the Company) that is senior to or PARI PASSU with the Notes or to the permanent reduction of Indebtedness or Preferred Stock of any Restricted Subsidiary of the Company (other than Indebtedness to, or Preferred Stock owned by, the Company or another Restricted Subsidiary of the Company);. Net Cash Proceeds from any Asset Sale that are not applied pursuant to clause (i) or (ii) above within 360 calendar days of the closing of such Asset Sale shall constitute "Excess Proceeds."
(2c) If at any time the aggregate amount of Excess Proceeds calculated as of such date exceeds $25 million, the Company shall use the then-existing Excess Proceeds to repay make an offer, as described in Section 4.08(d) hereof (an "Asset Sale Offer"), to purchase from all Holders, on a PRO RATA basis, Notes in an aggregate principal amount equal to the maximum principal amount that may be purchased out of the then-existing Excess Proceeds, at a purchase price (the "Asset Sale Purchase Price") in cash equal to 100 percent of the principal amount of such Notes, plus accrued and unpaid interest, if any, to the Asset Sale Payment Date.
(d) Within 30 calendar days of the date the amount of Excess Proceeds exceeds $25 million, the Company, or otherwise retire unsecured Indebtedness the Trustee at the request and expense of the Company, so long as shall send to each Holder by first class mail, postage prepaid, a pro rata offer notice prepared by the Company stating:
(i) that an Asset Sale Offer is being made in accordance with the procedures set forth pursuant to this Section 4.08, and that all Notes that are timely tendered will be accepted for payment, subject to proration in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of event the amount of any such Applicable Excess Proceeds is less than the aggregate Asset Sale Purchase Price of all Notes timely tendered pursuant to thisthe Asset Sale Offer;
(ii) the Asset Sale Purchase Price, the amount of Excess Proceeds that are available to be applied to purchase tendered Notes, and the date Notes are to be purchased pursuant to the Asset Sale Offer (the "Asset Sale Payment Date"), which date shall be a date no earlier than 30 calendar days nor later than 40 calendar days subsequent to the date such notice is mailed;
(iii) that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest;
(iv) that, unless the Company defaults in the payment of the Asset Sale Purchase Price with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Payment Date;
(v) that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled "Option of Holder to Elect Purchase" on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice, prior to the close of business on the third Business Day preceding the Asset Sale Payment Date;
(vi) that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Payment Date, a telegram, telex, facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder's election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer;
(vii) that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be $1,000 or an integral multiple thereof;
(viii) that any Holder whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Note or Notes surrendered, which unpurchased portion will be equal in principal amount to $1,000 or an integral multiple thereof; and
(ix) any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to this Section 4.08.
(e) If the aggregate Asset Sale Purchase Price of the Notes surrendered by Holders exceeds the amount of Excess Proceeds as indicated in the notice required by Section 4.08(d) hereof, the Trustee shall select the Notes to be purchased on a PRO RATA basis based on the principal amount of the Notes tendered, with such adjustments as may be deemed appropriate by the Trustee, so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased.
(f) On the Asset Sale Payment Date, the Company shall (i) accept for payment any Notes or portions thereof properly tendered and selected for purchase pursuant to the Asset Sale Offer and Section 4.08(e) hereof; (ii) irrevocably deposit with the Paying Agent, by 10:00 a.m., New York City time, on such date, in immediately available funds, an amount equal to the Asset Sale Purchase Price in respect of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee the Notes so accepted together with an Officers' Certificate listing the Notes or portions thereof tendered to the Company and accepted for payment. The Paying Agent shall promptly send by first class mail, postage prepaid, to each Holder of Notes or portions thereof so accepted for payment, payment in an amount equal to the Asset Sale Purchase Price for such Notes or portions thereof. The Company shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Asset Sale Payment Date.
(g) Upon surrender and cancellation of a Note that is purchased in part, the Company shall promptly issue and the Trustee shall authenticate and deliver to the surrendering Holder of such Note a new Note equal in principal amount to the unpurchased portion of such surrendered Note; PROVIDED that each such new Note shall be in a principal amount of $1,000 or an integral multiple thereof.
(h) Upon completion of an Asset Sale Offer (including payment of the Asset Sale Purchase Price for accepted Notes), any surplus Excess Proceeds that were the subject of such offer shall cease to be Excess Proceeds, and the Company may then use such amounts for general corporate purposes.
(i) The Company shall comply with the requirements of Section 14(e) under the Exchange Act and any other securities laws or regulations, to the extent such laws and regulations are applicable, in connection with the purchase of Notes pursuant to an Asset Sale Offer.
Appears in 2 contracts
Sources: Indenture (McLeodusa Inc), Indenture (McLeodusa Inc)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such the Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Capital Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(32) at least 75% of the consideration from such received in the Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Eligible Cash Equivalents or readily marketable securitiesEquivalents. For purposes of this Section 4.11provision, each of the following shall will 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) sheet of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary assignment and assumption or novation agreement that releases the Company or such Restricted Subsidiary from further liabilityliability with respect thereto;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities cash within 180 450 days after of their receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);; and
(c) Productive Assets; and
(d) any Designated Noncash Non-cash Consideration received by the Issuers Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (dc) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion 75.0 million and (ii) 3.02.75% of Total Assetsthe Consolidated Net Tangible Assets of the Company and its Restricted Subsidiaries at the time of the receipt of such Designated Non-cash Consideration, with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value. Within 450 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, or, if with respect to clauses (ii), (iii) and (iv) below, within 360 days after the receipt of any Net Cash Proceeds from any Asset Sale the Company or a any Restricted Subsidiary thereof may entered into a contractual commitment, pursuant to a binding agreement, to apply an amount equal to any such Net Cash Proceeds, then, within 540 days after the Applicable Percentage receipt of such Net Cash Proceeds, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Cash Proceeds (the “Applicable Proceeds”) at its option:
(1i) to repay permanently prepay, repay, redeem, purchase or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company repurchase Debt (other than Indebtedness represented solely by a guarantee Subordinated Obligations) and, if the Obligation repaid is revolving credit Debt, to correspondingly reduce commitments with respect thereto;
(ii) to acquire all or substantially all of the assets of, or any Capital Interests of, another Permitted Business, if, after giving effect to any such acquisition of Capital Interests, the Permitted Business is or becomes a Restricted Subsidiary of the Company);
(2iii) to repay make capital expenditures in or otherwise retire unsecured Indebtedness that are used or useful in a Permitted Business or to make expenditures for maintenance, repair or improvement of the Company, so long as a pro rata offer is made existing properties and assets in accordance with the procedures set forth provisions of this Indenture;
(iv) to acquire other assets (other than inventory) that are used or useful in a Permitted Business;
(v) to prepay, repay, redeem, purchase or repurchase Debt secured by the assets of the Company or any Restricted Subsidiaries; or
(vi) any combination of the foregoing. Pending the final application of any Net Cash Proceeds, the Company or any Restricted Subsidiary may temporarily reduce revolving credit borrowings under the Credit Agreement or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the next preceding paragraph of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $100.0 million, the Company will, within 30 days, make an Offer to Purchase to all Holders of Notes (on a pro rata basis among the Notes), and to all holders of other unsecured Indebtedness issued Debt ranking pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to assets sales, equal to the Excess Proceeds. The offer price in any Offer to Purchase will be equal to 100% of the principal amount plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Offer to Purchase, the Company may use those funds for any purpose not otherwise prohibited by this Indenture and they will no longer constitute Excess Proceeds. If the Company; or
(3) to invest in Productive Assets; provided that any such aggregate principal amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed Notes and other pari passu Debt tendered into such Offer to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Purchase exceeds the amount of Excess Proceeds, the Trustee, upon receipt of a Company Order, will select the Notes to be purchased on a pro rata basis among the Notes (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000 or any such Applicable integral multiple of $1,000 in excess thereof will be purchased). Upon completion of each Offer to Purchase, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to thisan Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will be deemed to have complied with its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.
Appears in 2 contracts
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, consummate an any Asset Sale unless:
(1i) the Company or such Restricted Subsidiary receives consideration consideration, including the relief of liabilities, at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) Property subject to such fair market value is determined by the Board of Directors of the CompanyAsset Sale; and
(3ii) except in the case of a Permitted Asset Swap, at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by paid to the Company or such Restricted Subsidiary in connection with such Asset Sale is in the form of cash, cash or Temporary Cash Equivalents or readily marketable securitiesInvestments. For Solely for the purposes of clause (a)(ii) of this Section 4.114.12, each of the following shall will be deemed to be cash:
(aA) any the assumption by the purchaser of liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and or liabilities that are by their terms subordinated to the NotesNotes or the applicable Subsidiary Guarantee) that are assumed by the transferee as a result of any such assets pursuant to a customary novation agreement that releases which the Company or and the Restricted Subsidiaries are no longer obligated with respect to such Restricted Subsidiary from further liabilityliabilities;
(bB) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that purchaser to the extent they are promptly converted or monetized by the recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof cash (to the extent of the cash, Cash Equivalents cash received) or readily marketable securities received in that conversion);
(c) Productive Assetsby their terms mature or are otherwise to be converted into cash within 180 days; and
(dC) any Designated Noncash Consideration received by the Issuers or any Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value of which, when taken together with all other Designated Noncash Consideration received pursuant to this clause (dC) (and not subsequently converted into cash or Temporary Cash Investments that is at that time outstandingare treated as Net Available Cash), does not to exceed the greater of (i1) $4.5 billion 175.0 million and (ii2) 3.05.5% of Total Assetsthe Consolidated Net Tangible Assets at the time of the receipt of such Designated Noncash Consideration, with the fair market value 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. Within 450 days after .
(b) The Net Available Cash (or any portion thereof) from Asset Sales may be applied by the receipt Company or a Restricted Subsidiary, to the extent the Company or such Restricted Subsidiary elects (or is required by the terms of any Net Proceeds from Debt) to any of the following uses:
(i) to Repay
(A) Debt of the Company or any Restricted Subsidiary that is secured by the Property subject to such Asset Sale (excluding any Debt owed to the Company or an Asset Sale, Affiliate of the Company) and/or
(B) Debt under the Credit Agreement or other Debt secured by a Lien on assets of the Company or a Restricted Subsidiary thereof may apply an amount equal (and, if the Debt repaid is revolving credit Debt, to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Companycorrespondingly reduce commitments with respect thereto);
(2ii) to repay invest or otherwise retire unsecured Indebtedness reinvest in Additional Assets (including by means of the Company, so long as an Investment in Additional Assets by a pro rata offer is made in accordance Restricted Subsidiary with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued Net Available Cash received by the CompanyCompany or another Restricted Subsidiary); or
(3iii) to invest make capital expenditures or other expenditures for maintenance, repair or improvement of existing Property. Notwithstanding the foregoing, (i) any investment in Productive Assets; provided that Additional Assets within 180 days prior to an Asset Sale shall be deemed to satisfy clause (b)(ii) above with respect to any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thisand
Appears in 2 contracts
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such the Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such the fair market value is determined by (a) an executive officer of the Company if the value is less than $20.0 million and evidenced by an Officers’ Certificate delivered to the Trustee, or (b) the Company’s Board of Directors if the value is $20.0 million or more and evidenced by a resolution of the Board of Directors of set forth in an Officers’ Certificate delivered to the CompanyTrustee; and
(3) at least 75% of the aggregate consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received 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 readily marketable securitiesEquivalents. For purposes of this Section 4.11provision, each of the following shall will be deemed to be cash:
(a) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) , of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are are, within 90 days after the Asset Sale, converted by the recipient thereof Company or such Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);; and
(c) Productive Assets; and
(d) any Designated Noncash Consideration received accounts receivable of a business retained by the Issuers company or any of its Restricted Subsidiary in Subsidiaries, as the case may be, following the sale of such Asset Sale having an aggregate fair market valuebusiness, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) provided that is at that time outstanding, not to exceed the greater of such accounts receivable (i) $4.5 billion are not past due more than 90 days and (ii) 3.0% do not have a payment date greater than 120 days from the date of Total Assets, 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 valueinvoices creating such accounts receivable. Within 450 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or a the applicable Restricted Subsidiary thereof Subsidiary, as the case may be) may apply those Net Proceeds at its option to any combination of the following:
(I) to repay Senior Debt;
(II) to invest in or acquire Additional Assets; or
(III) to make capital expenditures in respect of the Company’s or its Restricted Subsidiaries’ Oil and Gas Business. The requirement of clause (II) or (III) of the preceding paragraph shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an amount equal to Affiliate of the Applicable Percentage of Company within the time period specified in the preceding paragraph and such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made are subsequently applied in accordance with such contract within six months following the procedures set forth date such agreement is entered into. Pending the final application of any Net Proceeds, the Company or any Restricted Subsidiary may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the next preceding paragraph will constitute “Excess Proceeds.” On the 361st day after an Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $20.0 million, the Company will make an Asset Sale Offer to all Holders of Notes, and to all holders of other unsecured Pari Passu Indebtedness issued by then outstanding, to purchase the Company; or
(3) to invest in Productive Assets; provided that any such maximum principal amount of Net Notes and such 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 principal amount plus accrued and unpaid interest and Additional Interest, if any, thereon to the Settlement Date, subject to the right of Holders of record on the relevant record date to receive interest due on an interest payment date that is on or prior to the Settlement Date, and will be payable in cash. If any Excess Proceeds which remain after consummation of an Asset Sale Offer, the Company or may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee will select the Notes and such Pari Passu Indebtedness to be purchased on a Restricted Subsidiary thereof has committed to invest pro rata basis. Upon surrender of a Note that is repurchased in Productive Assets within 450 days part, the Issuers shall issue in the name of the applicable Holder and the Trustee shall authenticate for such Holder at the expense of the Issuers a new Note equal in principal amount to the non-repurchased portion of the Note surrendered. Upon completion of each Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any such Applicable Proceeds other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to thisan Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under such provisions by virtue of such compliance.
Appears in 2 contracts
Sources: Indenture (Linn Energy, LLC), Indenture (Linn Energy, LLC)
Limitation on Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such Restricted Subsidiary the Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;; and
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 7590% of the consideration from such received in the Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Sale by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securitiesReplacement Property. For purposes of this Section 4.11provision, each of the following shall be deemed to be cash:
(ai) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet) sheet of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation assignment and assumption agreement that releases the Company or such Restricted Subsidiary from further liability;
; and (bii) any securities, notes or other obligations marketable securities received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company into cash, Cash Equivalents or readily marketable securities cash within 180 days after of their receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant conversion will be deemed to this clause (d) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in valuebe cash. Within 450 720 days after the receipt of any Net Cash Proceeds from an Asset SaleSale or any Net Loss Proceeds from an Event of Loss, the Company (or a Restricted Subsidiary thereof the applicable Subsidiary, as the case may be) may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Cash Proceeds”) , or Net Loss Proceeds, as applicable, at its option:
(1i) to repay acquire all or otherwise retire debt under substantially all of the Credit Facilities assets of, or any other Indebtedness Equity Interests of, another Person or make capital expenditures, in compliance with Section 4.17; provided that to the extent the subject of the Restricted Subsidiaries Asset Sale or Event of Loss constituted Collateral, the Company acquired assets (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of Excluded Assets) shall be pledged as additional Collateral pursuant to the Company)Security Documents;
(2ii) to repay or otherwise retire unsecured Indebtedness acquire Replacement Property; provided that to the extent the subject of the CompanyAsset Sale or Event of Loss constituted Collateral, so long the Replacement Property shall be pledged as a pro rata offer is made additional Collateral in accordance with and pursuant to the procedures set forth Security Documents as provided in the next paragraph to all holders of other unsecured Indebtedness issued by the Companythis Indenture; or
(3iii) to invest any combination of the foregoing. Any Net Cash Proceeds from Asset Sales or Net Loss Proceeds from an Event of Loss that are not applied or invested as provided in Productive Assets; provided that any such the preceding paragraph of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Net Excess Proceeds which exceeds $10.0 million, the Company or a Restricted Subsidiary thereof has committed will, within 30 days, commence an Offer to invest Purchase to all Holders of Notes equal to the Excess Proceeds. The offer price in Productive Assets within 450 days any Offer to Purchase will be equal to 100% of the applicable Asset Sale principal amount plus accrued and unpaid interest to, but not including, the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Offer to Purchase, the Company may use those funds for any purpose not otherwise prohibited by this Indenture and they will no longer constitute Excess Proceeds. If the aggregate principal amount of Notes tendered exceeds the amount of Excess Proceeds, the Trustee will select the Notes to be invested in Productive Assets within two years purchased on a pro rata basis. Upon completion of such Asset Sale; provided that (1) pending each Offer to Purchase, the amount of Excess Proceeds will be reset at zero. Pending the final application of the amount of any such Applicable Net Cash Proceeds or Net Loss Proceeds pursuant to thisthis Section 4.10, the holder of such Net Cash Proceeds or Net Loss Proceeds may apply such Net Cash Proceeds or Net Loss Proceeds temporarily to reduce Debt outstanding under a revolving credit facility or otherwise invest such Net Cash Proceeds or Net Loss Proceeds in any manner not prohibited hereunder. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and will be deemed to have complied with its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.
Appears in 2 contracts
Sources: Indenture (Toys R Us Property Co II, LLC), Indenture (Toys R Us Inc)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an make any Asset Sale unlessunless the following conditions are met:
(1i) The Asset Sale is for at least Fair Market Value, as determined in good faith by the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;in a manner consistent with its customary practices.
(2ii) such fair market value is determined by the Board of Directors of the Company; and
(3) at At least 75% of the consideration (the valuation thereof to be reasonably determined by the Company) consists of cash or Cash Equivalents received at closing, which cash or Cash Equivalents shall be pledged as Collateral to the extent the assets disposed of were (or were required to be) Collateral. For purposes of this clause (ii), (A) the assumption by the purchaser of Debt or other obligations (other than Subordinated Debt or other obligations subordinated by their terms in right of payment to the Notes) of the Company or a Restricted Subsidiary pursuant to a customary novation agreement, and instruments or securities received from such Asset Salethe purchaser that are promptly, together with all other Asset Sales since but in any event within 180 days of the Issue Date on a cumulative basis closing, converted by the Company to cash, to the extent of the cash actually so received, shall be considered cash received at closing and (including by way of relief from, or by B) any other Person assuming responsibility for, any liability, contingent or otherwise) Designated Non-Cash Consideration received by the Company or such a Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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 Fair Market Value (d) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to any subsequent changes change in value. ), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (B) that has not been transferred, sold or otherwise exchanged for, or otherwise converted into, cash, not to exceed 5.0% of the Total Assets of the Company and its Restricted Subsidiaries at the time of the receipt of such Designated Non-Cash Consideration, shall be considered cash received at closing.
(iii) Within 450 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Net Cash Proceeds may be used at the Company’s option:
(A) to permanently repay (1) First-Priority Lien Obligations of the Company or a Guarantor or, if the assets disposed of were not (and were not required to be) Collateral, any Debt of a Restricted Subsidiary thereof may apply that is not a Guarantor (and in the case of a revolving credit, permanently reduce the commitment thereunder by such amount), in each case owing to a Person other than the Company or any Restricted Subsidiary or (2) Debt of the type described in Section 4.06(b)(ix) to the extent such Debt is secured by the property or assets that are the subject of such Asset Sale,
(B) to acquire all or substantially all of the assets of a Permitted Business, or a majority of the Voting Stock of another Person that thereupon becomes a Restricted Subsidiary engaged in a Permitted Business, or to make capital expenditures or otherwise acquire Additional Assets; provided that to the extent the assets disposed of were (or were required to be) Collateral, the assets acquired shall be pledged as Collateral, or
(C) any combination of clauses (A) through (B) above, provided that, in the cases of this clause (iii), a binding commitment shall be treated as a permitted application of Net Cash Proceeds from the date of such commitment so long as the Company or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “Acceptable Commitment”) and, in the event that any Acceptable Commitment is later cancelled or terminated for any reason before the Net Cash Proceeds are applied in connection therewith, the Company or such Restricted Subsidiary enters into another Acceptable Commitment (a “Second Commitment”) or applies such Net Cash Proceeds in accordance with clause (A), (B) or (C) above within 180 days of such cancellation or termination; provided, further, that if any Second Commitment is later cancelled or terminated for any reason before such Net Cash Proceeds are applied, then such Net Cash Proceeds shall constitute Excess Proceeds.
(iv) The Net Cash Proceeds of an Asset Sale not applied pursuant to clause (iii) of this Section 4.09(a) within 360 days of the Asset Sale constitute “Excess Proceeds”. Excess Proceeds of less than $50,000,000 will be carried forward and accumulated. When accumulated Excess Proceeds equal or exceed such amount, the Company must, within 60 days, make an Offer to Purchase Notes having a principal amount equal to
(A) accumulated Excess Proceeds, multiplied by
(B) a fraction (1) the numerator of which is equal to the outstanding principal amount of the Notes and (2) the denominator of which is equal to the outstanding principal amount of the Notes and all Debt secured by Liens on the Collateral of the same priority as the Liens securing the Notes similarly required to be repaid, redeemed or tendered for in connection with the Asset Sale, rounded down to the nearest $1,000. The purchase price for the Notes will be 100% of the principal amount plus accrued interest to, but excluding, the date of purchase. If the Offer to Purchase is for less than all of the Outstanding Notes and Notes in an aggregate principal amount in excess of the purchase amount are tendered and not withdrawn pursuant to the offer, the Company will purchase Notes having an aggregate principal amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as purchase amount on a pro rata offer is made basis, with adjustments so that only Notes in accordance with multiples of $1,000 principal amount will be purchased. Upon completion of the procedures set forth in Offer to Purchase, the next paragraph amount of the Excess Proceeds will be reset at zero, and any previously deemed Excess Proceeds remaining after consummation of the Offer to all holders of other unsecured Indebtedness issued Purchase may be used for any purpose not otherwise prohibited by the Company; orthis Indenture.
(3b) The Company will comply with Section 14(e) under the Exchange Act (including Rule 14e-1 thereunder) and all securities laws, rules, regulations and other applicable laws (to invest the extent such Section 14(e) or applicable laws, rules and regulations are applicable to such Offer to Purchase) in Productive Assets; provided that making any Offer to Purchase, and the above procedures will be deemed modified as necessary to permit such compliance.
(c) Pending the application of any such amount of Net Proceeds which Excess Proceeds, the Company or a such Restricted Subsidiary thereof has committed may use such Excess Proceeds to temporarily reduce revolving indebtedness under a Credit Facility, if any, or otherwise invest such Excess Proceeds in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thiscash or Cash Equivalents.
Appears in 2 contracts
Sources: Indenture (Eastman Kodak Co), Indenture (Eastman Kodak Co)
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Sale sale or other disposition at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by except in the Board case of Directors an Asset Sale (A) the consideration with respect to which does not exceed $5.0 million or (B) that pertain to assets which did not contribute more than 5% of EBITDA for the four full fiscal quarters immediately preceding the date of the Company; and
(3) at least Asset Sale, not less than 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cash, cash or Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of Equivalents; provided that the following shall will be deemed to be cash:cash for purposes of this clause (2):
(a) any liabilities (as shown on the Company’s 's or such Restricted Subsidiary’s 's most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated subordinate in right of payment to the NotesNotes or any Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;; and
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are within 30 days of receipt converted by the recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof cash (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(c) Productive Assets; and
(d3) any Designated Noncash Consideration except as provided below, the Asset Sale Proceeds received by the Issuers Company or such Restricted Subsidiary are applied:
(a) to the extent the Company elects, to an Investment in property or other assets (including Capital Stock or other securities purchased in connection with the acquisition of Capital Stock or property of another Person) in compliance with Section 4.20; provided that such Investment occurs or the Company or any such Restricted Subsidiary in enters into contractual commitments to make such Investment, subject only to customary conditions (other than the obtaining of financing), within 365 days following receipt of such Asset Sale having an aggregate fair market valueProceeds; and
(b) to the extent of the balance of Asset Sale Proceeds after application as described above, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) that the extent the Company or any such Restricted Subsidiary, as the case may be, elects, or is at that time outstandingrequired, not to exceed prepay, repay or purchase Indebtedness under any then existing Senior Indebtedness of the greater of (i) $4.5 billion and (ii) 3.0% of Total AssetsCompany or any such Restricted Subsidiary, 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. Within 450 such prepayment, repayment or purchase within 365 days after following the receipt of any Net the Asset Sale Proceeds from any Asset Sale; provided that any such repayment must result in a permanent reduction of the commitments thereunder in an amount equal to the principal amount so repaid;
(b) If after the 370th day after an Asset SaleSale (the "Excess Proceeds Offer Trigger Date"), the Available Asset Sale Proceeds exceed $10.0 million, the Company or a Restricted Subsidiary thereof may must apply an amount equal to the Applicable Percentage Available Asset Sale Proceeds to an offer to repurchase the Notes, at a purchase price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the purchase date (an "Excess Proceeds Offer").
(c) Within 30 days of the Excess Proceeds Offer Trigger Date, the Company shall mail to the Trustee and each Holder a notice stating, among other things, that the Company is making an Excess Proceeds Offer and offering to repurchase Notes on the date specified in such Net Proceeds notice (which will be a Business Day no earlier than 30 days nor later than 45 days from the date such notice is mailed) (the “Applicable Proceeds”"Excess Proceeds Payment Date") at its option:pursuant to the procedures required by this Indenture and described in such notice.
(1d) If an Excess Proceeds Offer is not fully subscribed, the Company may retain the portion of the Available Asset Sale Proceeds not required to repay or otherwise retire debt under repurchase Notes.
(e) In the Credit Facilities or any other Indebtedness event of the transfer of substantially all of the property and assets of the Company and the Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 of this Indenture, the successor Person will be deemed to have sold the properties and assets of the Company (other than Indebtedness represented solely by a guarantee and the Restricted Subsidiaries not so transferred for purposes of a Restricted Subsidiary this Section 4.13, and must comply with the provisions of the Company);this Section 4.13 with respect to such deemed sale as if it were an Asset Sale.
(2f) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance The Company shall comply with the procedures set forth requirements of Rule 14e-1 under the Exchange Act and other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the next paragraph repurchase of Notes pursuant to all holders an Excess Proceeds Offer. To the extent that the provisions of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which securities laws or regulations conflict with this Section 4.13, the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of shall comply with the applicable Asset Sale may securities laws and regulations and will not be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant deemed to thishave breached its obligations under this Section 4.13 by virtue thereof.
Appears in 2 contracts
Sources: Indenture (Affinity Group Holding, Inc.), Indenture (Affinity Group Inc)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such the Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to 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;
(2) such fair market value is , as determined in good faith by the Board of Directors of the Company; and
(32) at least 75% of the consideration from such received in the Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or readily marketable securitiesEquivalents. For purposes of this Section 4.11provision only (and specifically not for the purposes of the definition of “Net Proceeds”), each of the following shall be deemed to be cash:
(ai) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant (or are otherwise extinguished by the transferee in connection with the transactions relating to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liabilityAsset Sale);
(bii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that within 180 days are converted by the recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents cash or readily marketable securities within 180 days after receipt thereof cash equivalents (to the extent of the cash, Cash Equivalents cash or readily marketable securities cash equivalents received in that conversion);
(ciii) Productive Assetsthe fair market value of (x) any assets (other than securities or current assets) received by the Company or any Restricted Subsidiary that will be used or useful in a Related Business, (y) Equity Interests in a Person that is a Restricted Subsidiary or in a Person engaged in a Related Business that shall become a Restricted Subsidiary immediately upon the acquisition of such Equity Interests by the Company or the applicable Restricted Subsidiary or (z) a combination of (x) and (y); provided that the determination of the fair market value of assets or Equity Interests in excess of $25.0 million received in any transaction or series of related transactions shall be evidenced by an Officers’ Certificate delivered to the Trustee; and
(div) any Designated Noncash Consideration received by the Issuers 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 (div) since the Issue Date that is at that the time outstanding, not to exceed the greater of (ia) $4.5 billion and 185.0 million or (iib) 3.03.5% of Consolidated Total AssetsAssets at the time of receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value. .
(b) Within a period of 450 days (commencing after the Issue Date) after the receipt of any Net Proceeds from an of any Asset SaleSale (provided that if during such 450-day period after the receipt of any such Net Proceeds, the Company (or the applicable Restricted Subsidiary) enters into a definitive binding agreement committing it to apply such Net Proceeds in accordance with the requirements of clause (B), (D), (E), (F) or (G) of this Section 4.10(b) after such 450th day, such 450-day period will be extended with respect to the amount of Net Proceeds so committed for a period not to exceed 180 days until such Net Proceeds are required to be applied in accordance with such agreement (or, if earlier, until termination of such agreement)), the Company or a such Restricted Subsidiary thereof Subsidiary, at its option, may apply an amount equal to the Applicable Percentage Net Proceeds from such Asset Sale:
(A) to repay, prepay, redeem or repurchase Indebtedness (other than securities) under the Credit Agreement and, if such Indebtedness is revolving credit Indebtedness, effect a permanent reduction in the availability under such revolving credit facility (or effect a permanent reduction in the availability under such revolving credit facility regardless of the fact that no prepayment is required in order to do so (in which case no prepayment shall be required));
(B) to repay, prepay, redeem or repurchase Obligations under Senior Secured Indebtedness, including Senior Secured Indebtedness under Credit Facilities (other than the Credit Agreement), and to correspondingly reduce commitments with respect thereto;
(C) to repay, prepay, redeem or repurchase Obligations under (i) the Notes (to the extent such purchases are at or above 100% of the principal amount thereof) or (ii) any other senior Indebtedness (including under Credit Facilities (other than the Credit Agreement)) of the Company or a Restricted Subsidiary (and to correspondingly reduce commitments with respect thereto, if applicable); provided that the Company shall equally and ratably repay and reduce Obligations under the Notes (x) as provided under Section 3.02 or (y) through open market purchases or by making an offer (in accordance with the procedures set forth below for a Net Proceeds Offer) to all Holders of Notes to repurchase their Notes, in each case at 100% of the principal amount thereof, plus, in the case of each of clauses (i) and (ii), the amount of accrued but unpaid interest, if any, on the principal amount of the Notes to be repurchased to, but excluding, the date of repurchase;
(D) to repay, prepay, redeem or repurchase Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Company or another Restricted Subsidiary;
(E) to acquire Equity Interests in a Person that is engaged in a Related Business that shall become a Restricted Subsidiary immediately upon the acquisition of such Equity Interests by the Company or the applicable Restricted Subsidiary;
(F) to make capital expenditures in a Related Business;
(G) to acquire other assets (other than securities or current assets) that will be used or useful in a Related Business; or
(H) to effect a combination of prepayments and investments permitted by the foregoing clauses (A), (B), (C), (D), (E), (F) and (G).
(c) Pending the final application of such Net Proceeds (Proceeds, the “Applicable Proceeds”) at its option:
(1) to repay Company or otherwise retire debt any Restricted Subsidiary may temporarily reduce borrowings under the Credit Facilities or any other revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner not prohibited by this Supplemental Indenture. Subject to the last sentence of this Section 4.10(c), on the 451st day (as extended pursuant to the provisions in Section 4.10(b)) after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale as set forth in clause (A), (B), (C), (D), (E), (F), (G) and (H) of Section 4.10(b) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Proceeds that have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (A), (B), (C), (D), (E), (F), (G) and (H) of Section 4.10(b) (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”) on the Purchase Date, from all Holders (and, if required by the terms of any other Indebtedness of the Restricted Subsidiaries Company ranking pari passu with the Notes in right of payment and which has similar provisions requiring the Company either to make an offer to repurchase or to otherwise repurchase, redeem or repay such Indebtedness with the proceeds from Asset Sales (the “Pari Passu Indebtedness”), from the holders of such Pari Passu Indebtedness) on a pro rata basis (in proportion to the respective principal amounts or accreted value, as the case may be, of the Notes and any such Pari Passu Indebtedness) an aggregate principal amount of Notes (plus, if applicable, an aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) equal to the Net Proceeds Offer Amount. The offer price in any Net Proceeds Offer shall be equal to 100% of the principal amount of the Notes (or 100% of the principal amount or accreted value, as the case may be, of such Pari Passu Indebtedness), plus accrued and unpaid interest thereon, if any, to the Purchase Date; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than Indebtedness represented solely by a guarantee interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Proceeds thereof shall be applied in accordance with this Section 4.10. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of a Restricted Subsidiary $75.0 million resulting from one or more Asset Sales (at which time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $75.0 million, shall be applied as required pursuant to this Section 4.10(c), and in which case the CompanyNet Proceeds Offer Trigger Date shall be deemed to be the earliest date that the Net Proceeds Offer Amount is equal to or in excess of $75.0 million);.
(2d) to repay To the extent that the aggregate principal amount of Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of Pari Passu Indebtedness) validly tendered by the Holders thereof and not withdrawn exceeds the Net Proceeds Offer Amount, Notes of tendering Holders (and, if applicable, Pari Passu Indebtedness tendered by the holders thereof) will be purchased in accordance with Applicable Procedures if the Notes are Global Securities, otherwise retire unsecured Indebtedness of the Company, so long as on a pro rata offer basis (based on the principal amount of the Notes and, if applicable, the principal amount or accreted value, as the case may be, of any such Pari Passu Indebtedness tendered and not withdrawn). If the aggregate principal amount of Notes and the Pari Passu Indebtedness surrendered in a Net Proceeds Offer exceeds the Net Proceeds Offer Amount, the Trustee shall select the Notes and the Company shall select such Pari Passu Indebtedness to be repurchased on a pro rata basis based on the principal amount of the Notes and such Pari Passu Indebtedness tendered or, in the case of the Notes or any such Pari Passu Indebtedness that is made represented by global notes in fully registered form in the name of DTC or its nominee, in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive AssetsDTC; provided that no Notes of $2,000 or less shall be repurchased in part. To the extent that the aggregate principal amount of the Notes (plus, if applicable, the aggregate principal amount or accreted value, as the case may be, of any Pari Passu Indebtedness) tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purpose not prohibited by this Supplemental Indenture. Upon completion of any such amount of Net Proceeds which Offer, the Net Proceeds Offer Amount shall be reset at zero. A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by applicable law.
(e) The Company or the applicable Restricted Subsidiary, as the case may be, will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10 or Section 3.04, the Company or a such Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of shall comply with the applicable Asset Sale may securities laws and regulations and shall not be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant deemed to thishave breached its obligations under this Supplemental Indenture by virtue thereof.
Appears in 1 contract
Sources: Twelfth Supplemental Indenture (TreeHouse Foods, Inc.)
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
(1i) the Company (or such Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is Fair Market Value, as determined by the Board of Directors Directors, of the Companyassets or the Capital Stock subject to such Asset Sale; and
(3ii) at least 75% of the consideration from such received in the Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Cash Equivalents or readily marketable securities. For Equivalents; provided that for purposes of this Section 4.11clause (ii), each of the following shall be deemed to be cash:
(a1) any liabilities (liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheetsheet (including the footnotes) of available for the Company or any Restricted Subsidiary thereof and its Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesSecurities or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases and from which the Company or and its Subsidiaries are unconditionally released in writing by all creditors with respect to such Restricted Subsidiary from further liabilityliabilities;
(b2) any securities, notes or other obligations obligations, instruments, or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (by the Company or such Subsidiary into cash or Cash Equivalents, to the extent of the cash, cash or Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d3) any Designated Noncash Non-Cash Consideration received by the Issuers Company or any Restricted such Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value, as determined by the Board of Directors, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (diii) that is at that the time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.05.0% of Consolidated Total AssetsAssets at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value Fair Market Value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value. .
(b) Within 450 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or a Restricted Subsidiary thereof the applicable Subsidiary, as the case may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”be) may, at its option, apply such Net Cash Proceeds to:
(1i) to repay repay, prepay, purchase, redeem or otherwise retire debt (a) Indebtedness under the Credit Facilities or any other Senior Indebtedness, in each case that is secured by a Lien permitted under this Indenture (and, if the Indebtedness repaid is Indebtedness under a Revolving Credit Facility, to correspondingly reduce commitments with respect thereto), or (b) Indebtedness of the Restricted Subsidiaries of the Company (a Subsidiary that is not a Guarantor, in each case other than Indebtedness represented solely by a guarantee owed to the Company or an Affiliate of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3ii) to invest acquire, construct, replace, improve or repair assets useful in Productive Assets; provided that the Company’s or any Subsidiary’s business.
(c) Pending the final application of any Net Cash Proceeds, the Company (or such amount Subsidiary, as the case may be) may, at its option, (1) apply the Net Cash Proceeds to temporarily reduce Indebtedness outstanding under any Revolving Credit Facility of Net Proceeds which the Company or any Subsidiary, or (2) otherwise invest or apply the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(d) Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this Section 4.10 shall constitute “Excess Proceeds.” Within 30 days following the date on which the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company shall make an offer (an “Asset Sale Offer”) to all holders of Securities (the “Note Asset Sale Offer”), and, if required by the terms thereof, an offer to all holders of any other Indebtedness which ranks pari passu in right of payment with the Securities containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets (such Indebtedness, the “Pari Passu Indebtedness” and, such offer, the “Pari Passu Asset Sale Offer”), to purchase, on a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days pro rata basis (with Excess Proceeds pro rated between the Holders and such holders of such Pari Passu Indebtedness based upon the respective outstanding aggregate principal amounts (or accreted value, as applicable) on the date the Note Asset Sale Offer and the Pari Passu Asset Sale Offer, respectively, are made), the maximum principal amount of the Securities and the maximum principal amount (or accreted value, as applicable) of such Pari Passu Indebtedness that may be purchased out of the respective pro rata amounts of Excess Proceeds. To the extent that the aggregate principal amount of Securities or the aggregate principal amount (or accreted value, if applicable) of such Pari Passu Indebtedness tendered into the Note Asset Sale Offer and the Pari Passu Asset Sale Offer, respectively, is less than the principal amount of Securities or the principal amount (or accreted value, if applicable) of such Pari Passu Indebtedness offered to be purchased in the Note Asset Sale Offer or the Pari Passu Asset Sale Offer, respectively, the Company and its Subsidiaries may use those remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Securities or the aggregate principal amount (or accreted value, if applicable) of such Pari Passu Indebtedness tendered into the Note Asset Sale Offer or the Pari Passu Asset Sale Offer, respectively, exceeds the respective pro rata amounts of Excess Proceeds, the applicable trustee shall select such Securities or such other Pari Passu Indebtedness, as the case may be, to be purchased on a pro rata basis.
(e) The offer price in any Asset Sale Offer shall be equal to 100% of principal amount plus accrued and unpaid interest to the date of purchase (the “Asset Sale Payment Date”) (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date), and shall be payable in cash. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(f) If any non-cash consideration received by the Company or any of its Subsidiaries, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash, then such conversion or disposition, at the time of such conversion or disposition, shall be subject to the provisions of this Section 4.10 (subject to the proviso of the definition of “Asset Sale”).
(g) The Company’s obligation to make an offer to repurchase the Securities as a result of an Asset Sale may be invested in Productive Assets within two years waived or modified at any time prior to the occurrence of such Asset Sale; provided that (1) pending Sale with the final application written consent of the holders of a majority in principal amount of any such Applicable Proceeds the Securities, as set forth in Section 9.02.
(h) In the event that the Company makes an Asset Sale Offer to purchase the Securities pursuant to thisthis Section 4.10, the Company shall comply with any applicable securities laws and regulations, including any applicable requirements of Section 14(e) of, and Rule 14e-1 under, the Exchange Act.
Appears in 1 contract
Sources: Indenture (National CineMedia, Inc.)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, and each of the Guarantors will not, consummate an any Asset Sale unless:
(1) the consideration such Guarantor, the Company or such Restricted Subsidiary receives consideration at the time of for such Asset Sale at least equal to is not less than the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed ofsold;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such Asset SaleGuarantor, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is receives in respect of such Asset Sale (100% with respect to any Collateral) consists of: (A) cash (including, without limitation, any Net Cash Proceeds received from the form conversion within 60 days of cash, Cash Equivalents or readily marketable securities. For purposes such Asset Sale of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received in consideration of such Asset Sale); (B) Cash Equivalents; (C) the assumption by the purchaser of (x) the Guarantor’s or the Company’s Indebtedness secured by a Lien or Indebtedness of any Restricted Subsidiary secured by a Lien (other than Subordinated Indebtedness) as a result of which none of the Guarantors, the Company or the Restricted Subsidiaries remains obligated in respect of such Indebtedness or (y) Indebtedness of a Restricted Subsidiary secured by a Lien and such Restricted Subsidiary is no longer a Restricted Subsidiary as a result of such Asset Sale, if the Company, the Guarantors and each other Restricted Subsidiary is released from any guarantee of such Indebtedness secured by a Lien as a result of such Asset Sale; or (D) a combination of the consideration specified in clauses (A) to (C); and
(3) the Company delivers an Officers’ Certificate to the Administrative Agent certifying that such Asset Sale complies with the provisions described in clauses (1) and (2) above. If a Guarantor, the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 days after the receipt of any Net Proceeds from consummates an Asset Sale, the Net Cash Proceeds of the Asset Sale, within 360 days after the consummation of such Asset Sale, may be used by any Guarantor, the Company or a any Restricted Subsidiary thereof may apply an amount equal to (i) permanently repay or prepay the Notes, (ii) invest in any Replacement Assets, or (iii) effect any combination of the foregoing; provided that a binding commitment shall be treated as a permitted application of Net Cash Proceeds pursuant to the Applicable Percentage foregoing so long as the Company or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds shall be applied to satisfy such commitment on or prior to 90 days following the expiration of such 360 day period, and such Net Cash Proceeds are in fact applied on or prior to the expiration of such 90 day period. In addition, following the expiration of such 360 day period (or following the expiration of such subsequent 90 day period, as applicable), any Net Cash Proceeds not applied as set forth above shall, if required under Section 4.08, be used by the Company to make an Excess Proceeds Offer with respect to the Notes. The amount of such Net Cash Proceeds not so used as set forth in this paragraph constitutes “Excess Proceeds.” Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in any manner that is not prohibited by this Agreement. When the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company will, within 20 Business Days, make an offer to purchase (the an “Applicable ProceedsExcess Proceeds Offer”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as all Holders on a pro rata offer is made basis, in accordance with the procedures set forth in this Agreement, the next paragraph to all holders maximum principal amount (expressed as a multiple of other unsecured Indebtedness issued by the Company; or
(3$1,000) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale Notes that may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of purchased with the amount of any such Applicable the Excess Proceeds. The offer price as to the Notes will be payable in cash in an amount equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest, if any, to the date of purchase. For the avoidance of doubt, an Excess Proceeds Offer may be made, in the Company’s discretion, prior to the end of the 360 day period described in the preceding paragraph. To the extent that the aggregate principal amount of the Notes tendered pursuant to thisan Excess Proceeds Offer is less than the aggregate amount of Excess Proceeds, the Company may, subject to the 8.875% Notes Indenture, use the amount of such Excess Proceeds not used to prepay the Notes for general corporate purposes that are not otherwise prohibited by this Agreement. If the aggregate principal amount of the Notes tendered pursuant to an Excess Proceeds Offer exceeds the aggregate amount of Excess Proceeds, the Notes shall be purchased on a pro rata basis (based on the principal amount of the Notes tendered). Upon completion of each such Excess Proceeds Offer, the amount of Excess Proceeds will be reset to zero. In order to make an Excess Proceeds Offer, the Company must send, by first class mail (or electronic transmission), a notice to each Holder, with a copy to the Administrative Agent, which notice shall govern the terms of the Excess Proceeds Offer. Such notice shall state, among other things, (i) that an Excess Proceeds Offer is being made pursuant to this Agreement, (ii) the purchase date, which shall be, subject to any contrary requirements of applicable law, a Business Day no earlier than 30 days nor later than 60 days after the date on which such notice is sent, and (iii) such information regarding the TIP and its Subsidiaries as the Company in good faith believes will enable Holders to make an informed decision with respect to such Excess Proceeds Offer. Holders electing to have a Note purchased pursuant to an Excess Proceeds Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Administrative Agent at the address specified in the notice prior to the close of business on the fifth Business Day prior to the purchase date. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.08, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.08 by virtue thereof. Any prepayment of Notes pursuant to this Section 4.08 shall be made pursuant to the procedures specified in Section 3.03.
Appears in 1 contract
Sources: Note Purchase Agreement (Trilogy International Partners Inc.)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an make any Asset Sale unlessunless the following conditions are met:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such The Asset Sale at least equal to the is for fair market value value, as determined in good faith by the Board of the assets or Equity Interests issued or sold or otherwise disposed of;Directors.
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at At least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way consists of relief from, cash or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securitiesreceived at closing. (For purposes of this Section 4.11clause (2), each (A) the assumption by the purchaser of the following shall be deemed to be cash:
Debt or other obligations (a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetother than Subordinated Debt) of the Company or any a Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement agreement, and instruments or securities received from the purchaser that releases are promptly, but in any event within 30 days of the Company or such Restricted Subsidiary from further liability;
(b) any securitiesclosing, notes or other obligations received converted by the Company to cash or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cashCash Equivalents, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, cash or Cash Equivalents or readily marketable securities actually so received, shall be considered cash received in that conversion);
at closing and (c) Productive Assets; and
(dB) any Designated Noncash Non-cash Consideration received by the Issuers Issuer or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (dB) that is at that time outstanding, not to exceed the greater of (ix) $4.5 billion 75.0 million and (iiy) 3.0% of Total Assets, at the time of the receipt of such Designated Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value. ).
(3) Within 450 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof Net Cash Proceeds may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:be used
(1A) to permanently repay or otherwise retire debt under secured Debt (and in the Credit Facilities or any other Indebtedness case of a revolving credit, permanently reduce the Restricted Subsidiaries of the Company (commitment thereunder by such amount), in each case owing to a Person other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a any Restricted Subsidiary, (B) to (i) reduce the Obligations under the Notes as provided under Section 3.01, (ii) to repurchase, acquire, redeem, defease, discharge or retire in any manner the Notes through open market purchases (provided that the purchase price is at least 100% of the principal amount plus accrued interest), (iii) to reduce Obligations under the Notes and any Obligations under any Debt ranking pari passu in right of payment with the Notes (“pari passu Debt”) by making an Offer to Purchase the Notes and any pari passu Debt in the manner described in clause (4) below, or (iv) to repurchase, acquire, redeem, defease, discharge or retire in any manner any Debt, Disqualified Stock or Preferred Stock of any Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thisis not a Guarantor, or
Appears in 1 contract
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an make any Asset Sale unlessunless the following conditions are met:
(1a) the Company or such Restricted Subsidiary receives consideration at the time of such The Asset Sale at least equal to the is for fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is value, as determined in good faith by the Board of Directors of the Company; and.
(3b) at At least 75% of the consideration from consists of cash received at closing; provided, however, to the extent that any disposition in such Asset SaleSale was of Collateral, together the non-cash consideration received is pledged as Collateral under the Collateral Agreements substantially simultaneously with all other Asset Sales since such sale, in accordance with the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is requirements set forth in the form of cash, Cash Equivalents or readily marketable securitiesthis Indenture. For purposes of this Section 4.11, each of the following shall be deemed to be cash:clause (b):
(ai) any liabilities Debt (as shown on the Company’s other than Subordinated Debt) or such Restricted Subsidiary’s most recent balance sheet) other obligations of the Company or any a Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets purchaser pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
otherwise extinguished (b) any securities, notes or other obligations received than as a result of payment by the Company or any such a Restricted Subsidiary Subsidiary;
(ii) Designated Non-cash Consideration up to the greater of $25.0 million and 2.0% of Consolidated Net Tangible Assets of the Company and its Restricted Subsidiaries; and
(iii) instruments or securities received from such transferee the purchaser that are promptly, but in any event within 90 days of the closing, converted by the recipient thereof into Company to cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cashcash actually so received, Cash Equivalents or readily marketable securities shall be considered cash received in that conversion);at closing.
(c) Productive AssetsAn amount equal to the Net Cash Proceeds from the Asset Sale may be used
(i) to permanently repay (1) any First Lien Indebtedness or (2) unless the Net Cash Proceeds are from a disposition of Collateral, Debt under the U.S. Credit Facility, or (3) unless the Net Cash Proceeds are from a disposition of Collateral, Debt of any Restricted Subsidiary that is not a Guarantor (and, in each case, in the case of a revolving credit, permanently reduce the commitment thereunder by such amount), or
(ii) to acquire all or substantially all of the assets of a Permitted Business, or a majority of the Voting Stock of another Person that thereupon becomes a Restricted Subsidiary engaged in a Permitted Business, or to make capital expenditures or otherwise acquire long-term assets (including an undivided interest therein) that are to be used in a Permitted Business; andprovided that the assets (including Voting Stock) acquired with the Net Cash Proceeds of a disposition of Collateral are pledged as Collateral under the Collateral Agreements substantially simultaneously with such acquisition in accordance with the requirements of this Indenture.
(d) any Designated Noncash Consideration received by the Issuers or any Restricted Subsidiary in such The Net Cash Proceeds of an Asset Sale not applied pursuant to clause (c) within 360 days of the Asset Sale constitute “Excess Proceeds”. Excess Proceeds of less than $20.0 million will be carried forward and accumulated. When accumulated Excess Proceeds equal or exceed $20.0 million, the Company must, within 30 days, make an Offer to Purchase Notes having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) that is at that time outstanding, not to exceed the greater of principal amount equal to
(i) $4.5 billion and the accumulated Excess Proceeds, multiplied by
(ii) 3.0a fraction (x) the numerator of which is equal to the outstanding principal amount of the Notes and (y) the denominator of which is equal to the outstanding principal amount of the Notes and all Parity Lien Debt similarly required to be repaid, redeemed or tendered for in connection with the Asset Sale, rounded down to the nearest $1,000. The purchase price for the Notes will be 100% of Total Assetsthe principal amount plus accrued interest to the date of purchase. Upon completion of the Offer to Purchase, with Excess Proceeds will be reset at zero, and any Excess Proceeds remaining after consummation of the Offer to Purchase may be used for any purpose not otherwise prohibited by this Indenture.
(e) To the extent that any Net Cash Proceeds are from a disposition of Collateral the fair market value of each item which exceeds $20.0 million in the aggregate, such Net Cash Proceeds will be deposited with the Noteholder Collateral Agent or the Trustee, as the case may be, and held as Collateral pending application pursuant to clause (c) or (d) above, and, in the case of Designated Noncash Consideration being measured at the time received and without giving effect clause (d), released to subsequent changes in value. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness relevant Guarantor if remaining after consummation of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) Offer to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thisPurchase.
Appears in 1 contract
Sources: Indenture (Century Aluminum Co)
Limitation on Asset Sales. The Company (a) Parent shall not, and shall not permit any of its the Restricted Subsidiaries to, consummate an any Asset Sale Sale, unless:
(1i) the Company consideration received by Parent or such Restricted Subsidiary receives consideration at the time of such Asset Sale is at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3ii) at least 75% of the consideration from such Asset Salereceived, together with all other Asset Sales since the Issue Date calculated on a cumulative basis (including by way of relief fromtogether with other Asset Sales from the Issue Date, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form consists of cash, Temporary Cash Equivalents Investments or readily marketable securities. Replacement Assets, or a combination of cash, Temporary Cash Investments or Replacement Assets; provided, however, with respect to the sale of one or more properties that up to 75% of the consideration may consist of Indebtedness of the purchaser of such properties so long as such Indebtedness is secured by a first priority Lien on the property or properties sold.
(b) For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(ai) any liabilities of Parent or the Restricted Subsidiaries (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet) sheet of Parent and the Company or any Restricted Subsidiary thereof (Subsidiaries other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Guaranty) that are assumed by the transferee of any such assets pursuant to a customary novation an agreement that releases the Company Parent or any such Restricted Subsidiary from further liabilityliability with respect to such liabilities or that are assumed by contract or operation of law;
(bii) any securities, notes or other obligations received by the Company Parent or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Parent or such Restricted Subsidiary into cash, cash or Temporary Cash Equivalents or readily marketable securities Investments within 180 days after receipt thereof (to the extent of the cash, cash or Temporary Cash Equivalents or readily marketable securities Investments received in that conversion);
(c) Productive Assets; and
(diii) any Designated Noncash Non-Cash Consideration received by the Issuers Parent or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (diii) that is at that the time outstanding, not to exceed the greater of (ix) $4.5 billion 100,000,000 and (iiy) 3.02.0% of the Issuers’ Adjusted Total AssetsAssets at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value. In addition, any Asset Sale arising from any sale, transfer or other disposition of an Investment in a joint venture to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture or similar agreements need not comply with clauses (i) and (ii) of Section 4.11(a) to the extent the Net Cash Proceeds received in such transaction shall be applied in accordance with the provisions of this Section 4.11.
(c) Within 450 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, Parent or any such Restricted Subsidiary may apply such Net Cash Proceeds:
(i) to prepay, repay, redeem or purchase Pari Passu Indebtedness of the Company Issuers or a Subsidiary Guarantor that is Secured Indebtedness (in each case other than Indebtedness owed to the Issuers or an Affiliate of the Issuers);
(ii) to make an Investment in (provided such Investment is in the form of Capital Stock), or to acquire all or substantially all of the assets of, a Person engaged in a Permitted Business if such Person is, or will become as a result thereof, a Restricted Subsidiary;
(iii) to prepay, repay, redeem or purchase Pari Passu Indebtedness of Parent, an Issuer or of any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary thereof that is not a Subsidiary Guarantor; provided, however, that if Parent, the Issuers or a Subsidiary Guarantor shall so prepay, repay, redeem or purchase any such Pari Passu Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, the Issuers shall equally and ratably reduce obligations under the Notes if the Notes are then prepayable or, if the Notes may apply not then be prepaid, the Issuers shall make an offer (in accordance with the procedures set forth below) with the ratable proceeds to all Holders to purchase their Notes at 100% of the principal amount thereof, plus accrued but unpaid interest, if any, up to the principal amount of Notes that would otherwise be prepaid;
(iv) to fund all or a portion of an optional redemption of the Notes pursuant to Section 5 of the Notes;
(v) to make a capital expenditure;
(vi) to acquire Replacement Assets to be used or that are useful in a Permitted Business; or
(vii) to any combination of the foregoing; provided that the Issuers shall be deemed to have complied with the provisions described in clauses (ii), (v) and (vi) of this paragraph if and to the extent that, within 365 days after the Asset Sale that generated the Net Cash Proceeds, Parent or any of the Restricted Subsidiaries has entered into and not abandoned or rejected a binding agreement to acquire the assets or Capital Stock of a Permitted Business, acquire Replacement Assets or make a capital expenditure in compliance with the provisions described in clauses (ii), (v) and (vi) of this paragraph (each an “Acceptable Commitment”), and that Acceptable Commitment (or a replacement commitment should the Acceptable Commitment be subsequently cancelled or terminated for any reason) is thereafter completed within 180 days after the end of such 365-day period. Pending the final application of any such Net Cash Proceeds, the Issuers may temporarily reduce the revolving Indebtedness under any Credit Facility or otherwise invest such Net Cash Proceeds in any manner that is not prohibited by this Indenture. The amount of such excess Net Cash Proceeds required to be applied (or to be committed to be applied) during such 365-day period as set forth in this paragraph (c) and not so applied by the end of such period shall constitute “Excess Proceeds.”
(d) When the aggregate amount of Excess Proceeds exceeds $50,000,000, the Issuers shall make an offer to all holders of the Notes and, if required by the terms of any Indebtedness that is Pari Passu Indebtedness, to the holders of such Pari Passu Indebtedness on a pro rata basis (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, that may be purchased out of the Applicable Percentage Excess Proceeds at an offer price in cash in an amount equal to 100.0% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any, to the date fixed for the closing of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Companyoffer, so long as a pro rata offer is made in accordance with the procedures set forth in this Indenture. The Issuers will commence an Asset Sale Offer with respect to Excess Proceeds within 20 Business Days after the next paragraph date that Excess Proceeds exceed $50,000,000 by delivering the notice required pursuant to all holders the terms of other unsecured Indebtedness issued this Indenture, with a copy to the Trustee. The Issuers may satisfy the foregoing obligations with respect to any Excess Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Excess Proceeds prior to the Company; orexpiration of the relevant 365 days or with respect to Excess Proceeds of $50,000,000 or less.
(3e) To the extent that the aggregate amount of Notes and such Pari Passu Indebtedness tendered pursuant to invest in Productive Assets; provided that an Asset Sale Offer is less than the Excess Proceeds, Parent and the Restricted Subsidiaries may use any remaining Excess Proceeds for any purpose not prohibited by this Indenture. If the aggregate principal amount of Notes or the Pari Passu Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Issuers shall select such Pari Passu Indebtedness to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such Pari Passu Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds that resulted in the Asset Sale Offer shall be reset to zero. Parent may satisfy the foregoing obligation with respect to any Net Cash Proceeds which prior to the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days expiration of the applicable relevant 365 day period (as such period may be extended in accordance with this Indenture). Nothing in this paragraph shall preclude the Issuers from making an Asset Sale may be invested in Productive Assets within two years Offer even if the amount of such Excess Proceeds not previously subject to an Asset Sale; provided that Sale Offer pursuant to this Section 4.11 covenant totals less than $25,000,000.
(1f) pending Pending the final application of the amount of any such Applicable Net Cash Proceeds pursuant to thisthis Section 4.11, the holder of such Net Cash Proceeds may apply such Net Cash Proceeds temporarily to reduce Indebtedness outstanding under a revolving Indebtedness under any Credit Facility or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture.
(g) The Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuers will comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations described in this Indenture by virtue thereof.
Appears in 1 contract
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an make any Asset Sale unlessunless the following conditions are met:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such The Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;is for Fair Market Value.
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at At least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way consists of relief from, cash or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securitiesreceived at closing. For purposes of this Section 4.11clause (2), each of the following shall be deemed to be cashcash or Cash Equivalents:
(ai) any liabilities the assumption by the purchaser of Debt or other obligations (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetother than Subordinated Debt) of the Company or any a Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;agreement,
(bii) instruments or securities (other than Cash Equivalents) received from the purchaser that are promptly, but in any securitiesevent within 90 days of the closing, notes or other obligations received converted by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into to cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);cash actually so received,
(ciii) Productive Assetsany stock or assets of the kind referred to in clause (3)(ii) of this Section 4.13; and
(div) any Designated Noncash Consideration received by the Issuers Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (div) that is at that time outstanding, not to exceed the greater of (ia) $4.5 billion and 25,000,000 or (iib) 3.00.75% of Total Assets, with the fair market value 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. .
(3) Within 450 365 days after the receipt of any Net Cash Proceeds from an the Asset Sale, the Net Cash Proceeds may be used
(i) to permanently repay Senior Debt of the Company or a Guarantor or any Debt of a Restricted Subsidiary that is not a Guarantor (and in the case of a revolving credit, permanently reduce the commitment thereunder by such amount), in each case owing to a Person other than the Company or any Restricted Subsidiary, or
(ii) to acquire all or substantially all of the assets of a Permitted Business, or a majority of the Voting Stock of another Person that thereupon becomes a Restricted Subsidiary engaged in a Permitted Business, or to make capital expenditures or otherwise acquire long-term assets that are to be used in a Permitted Business; provided that, in the case of this clause (3)(ii), a binding commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment so long as the Company or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Cash Proceeds will be applied to satisfy such commitment within 180 days after the end of such 365-day period; provided, further, that in the event any such commitment is later cancelled or terminated for any reason before the Net Cash Proceeds are applied in connection therewith, then such Net Cash Proceeds may then be used as described in clause (3)(i) on or prior to the expiration of such 180-day period.
(4) The Net Cash Proceeds of the Asset Sale not applied pursuant to clause (3) within 365 days of the Asset Sale (or such longer period in the proviso to clause (ii) thereof) constitute “Excess Proceeds.” Excess Proceeds of less than $50,000,000 will be carried forward and accumulated. When accumulated Excess Proceeds equals or exceeds $50,000,000, the Company must, within 30 days, make an Offer to Purchase Notes having a principal amount equal to:
(i) accumulated Excess Proceeds, multiplied by
(ii) a fraction (x) the numerator of which is equal to the outstanding principal amount of the Notes and (y) the denominator of which is equal to the sum of the outstanding principal amount of the Notes and the aggregate outstanding principal amount of all other Debt (determined at the accreted amount thereof, in the case of any such Debt issued with an original issue discount) that is similarly required to be repaid, redeemed or tendered for in connection with such Asset Sale; rounded down to the nearest $1,000. In connection with any Offer to Purchase Notes under this Section, the purchase price for the Notes will be 100% of the principal amount thereof may apply plus accrued interest to, but not including, the date of purchase. If the Offer to Purchase is for less than all of the outstanding Notes and Notes in an aggregate principal amount in excess of the purchase amount are tendered and not withdrawn pursuant to the offer, the Company will purchase Notes having an aggregate principal amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as purchase amount on a pro rata offer is made basis, with adjustments so that only Notes in accordance with multiples of $1,000 principal amount will be purchased. Upon completion of the procedures set forth in Offer to Purchase, Excess Proceeds will be reset at zero, and any Excess Proceeds remaining after consummation of the next paragraph Offer to all holders of other unsecured Indebtedness issued Purchase may be used for any purpose not otherwise prohibited by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thisIndenture.
Appears in 1 contract
Sources: Indenture (Digitalglobe, Inc.)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such a Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed ofof (measured at the time of agreement);
(2) such the fair market value is determined by the Company’s Board of Directors if the value is $50.0 million or more and evidenced by a resolution of the CompanyBoard of Directors set forth in an Officers’ Certificate delivered to the Trustee; and
(3) at least 75% of the aggregate consideration from such received by the Company and its Restricted Subsidiaries in the Asset Sale, together with Sale and all other Asset Sales since the Issue Date on a cumulative basis (including by way date of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary this Indenture is in the form of cash, cash or Cash Equivalents or readily marketable securitiesEquivalents. For purposes of this Section 4.11provision, each of the following shall will be deemed to be cashcash or Cash Equivalents:
(a) any liabilities (liabilities, as shown on the Company’s or such any Restricted Subsidiary’s most recent balance sheet) , of the Company or any Restricted such Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cashare, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (the Asset Sale, converted by the Company or such Subsidiary into cash, to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);; and
(c) Productive Assets; and
(d) any Designated Noncash Non-cash Consideration received by the Issuers Company or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valuevalue (as determined in good faith by the Company), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (d) that is at that time outstandingc), not to exceed the greater of (i) $4.5 billion 50.0 million and (ii) 3.0% of the Company’s Total Assets, Assets (with the fair market value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value). Within 450 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a any Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such those Net Proceeds (the “Applicable Proceeds”) at its optionoption to any combination of the following:
(1I) to repay repay, redeem, repurchase or otherwise retire debt under Senior Debt, including the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company)Notes;
(2II) to repay acquire all or otherwise retire unsecured Indebtedness substantially all of the Companyproperties or assets of a Person primarily engaged in a Permitted Business;
(III) to acquire any of the Voting Stock of a Person primarily engaged a Permitted Business, so long as if, after giving effect to any such acquisition of Voting Stock, such Person becomes a pro rata offer Restricted Subsidiary;
(IV) to make capital expenditures; or
(V) to acquire other long-term assets that are used or useful in a Permitted Business. The requirement of clauses (II), (III), (IV) or (V) of the immediately 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 made in accordance entered into by the Company or any of its Restricted Subsidiaries with a Person within the procedures set forth time period specified in the next preceding paragraph and the investment, acquisition or expenditure is completed within 180 days of the expiration of the time period specified in the preceding paragraph. Pending the final application of any Net Proceeds, the Company or any Restricted Subsidiary may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute “Excess Proceeds.” On the 366th day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $50.0 million, the Company will make an Asset Sale Offer to all Holders of Notes, and to all holders of other unsecured Pari Passu Indebtedness issued by then outstanding, to purchase the Company; or
(3) to invest in Productive Assets; provided that any such maximum principal amount of Net Notes and such Pari Passu Indebtedness that may be purchased, redeemed or repaid out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest, if any, to the Settlement Date, 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 Settlement Date, and will be payable in cash. If any Excess Proceeds which remain after consummation of an Asset Sale Offer, the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of the applicable Notes and Pari Passu Indebtedness tendered into such Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of Offer exceeds the amount of any Excess Proceeds, the Trustee will select the Notes and the agent of the trustee for such Applicable Proceeds pursuant other Pari Passu Indebtedness shall select such Pari Passu Indebtedness to thisbe purchased on a pro rata basis as set forth in
Appears in 1 contract
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an any Asset Sale Sale, unless:
(1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is at least equal to the fair market value (as determined in good faith by the form Board of cashDirectors (including as to the value of all noncash consideration) and, Cash Equivalents or readily marketable securities. For purposes if determined to be in excess of this Section 4.11$5.0 million, each as set forth in an Officers' Certificate delivered to the Trustee) of the following shall be deemed to be cashassets sold or disposed of (or of the Capital Stock issued, sold or otherwise disposed of);
(ii) at least 75% of the consideration received consists of:
(aA) any liabilities cash or Temporary Cash Investments,
(as shown on B) the Company’s assumption, payment or such Restricted Subsidiary’s most recent balance sheet) extinguishment of Indebtedness or other liabilities, in each case not subordinated in right of payment to the Notes, of the Company or any Restricted Subsidiary thereof (in each case, other than contingent liabilities and liabilities that are by their terms subordinated Indebtedness owed to the Notes) Company or any Restricted Subsidiary), provided that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary is irrevocably and unconditionally released from further liability;all liability under such Indebtedness or other liabilities, or
(bC) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Replacement Assets; and
(diii) any Designated Noncash Consideration (I) the Net Cash Proceeds received by the Issuers Company (or any such Restricted Subsidiary in Subsidiary, as the case may be) from such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 are applied within 365 days after following the receipt of any such Net Proceeds from an Asset SaleCash Proceeds, to the extent the Company (or a such Restricted Subsidiary thereof Subsidiary, as the case may be) elects:
(A) apply an amount equal to the Applicable Percentage of such excess Net Cash Proceeds (the “Applicable Proceeds”) at its option:
(1) to permanently repay or otherwise retire debt under the Credit Facilities or any other unsubordinated Indebtedness of the Company or Indebtedness of any other Restricted Subsidiaries of Subsidiary, in each case owing to a Person other than the Company (other than Indebtedness represented solely by a guarantee or any of a its Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the CompanySubsidiaries, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3B) invest an equal amount, or the amount not so applied pursuant to clause (A) (or enter into a definitive agreement committing to so invest in Productive Assets; provided that any such amount of Net Proceeds which within 365 days after the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years date of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thisagreement), in Replacement Assets, or
Appears in 1 contract
Sources: Senior Notes Indenture (Colo Com)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale (including a Collateral Disposition), unless:
(1) the Company (or such Restricted Subsidiary the Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests Capital Stock issued or sold or otherwise disposed of; provided, that in the case of a Collateral Disposition of any Property set forth in Category 1 on Annex I hereto (or Capital Stock of a Subsidiary that, directly or indirectly, owns any such Property), the Company (or the Subsidiary) receives consideration at the time of the Asset Sale that is at least equal to the greater of (i) the release price of such Property set forth on Annex II hereto and (ii) the Fair Market Value of the Collateral sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such received in the Asset Sale, together with all Sale (other than an Asset Sales since Sale of Properties set forth in Category 4 on Annex I hereto that are owned by a Subsidiary of the Issue Date Company and Category 8 on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwiseAnnex I hereto) received by the Company or such Restricted Subsidiary is in the form of cashcash or cash equivalents;
(3) funds in an amount equal to the Net Available Cash are deposited directly in a deposit account subject to a valid and perfected Lien in favor of the Collateral Agent free of any other Lien (other than the Lien of the Secured Debt Documents or any other Permitted Collateral Lien); and
(4) in the case of an Asset Sale of Capital Stock of a Subsidiary, Cash Equivalents such Asset Sale constitutes a disposition of all Capital Stock of such Subsidiary owned by the Company or readily marketable securitiesany Subsidiary; provided, that any Collateral Disposition constituting any Event of Loss, loss, destruction, damage, condemnation, confiscation, requisition, seizure, forfeiture or taking of title to or use of Collateral shall not be required to satisfy the conditions set forth in clauses (1) or (2) of this paragraph. For the purposes of this Section 4.114.03, each of the following shall be are deemed to be cashcash or cash equivalents:
(a1) any liabilities (as shown on solely in the Company’s case of an Asset Sale not constituting a Collateral Disposition of Property Collateral, the assumption or such Restricted Subsidiary’s most recent balance sheet) discharge of Indebtedness of the Company or any Restricted Subsidiary thereof of a Guarantor (other than unsecured Indebtedness, Junior Lien Debt, contingent liabilities and liabilities that are by their terms subordinated in right of payment to the NotesNotes or any Subsidiary Guarantee and obligations in respect of Disqualified Stock of the Company) that are assumed by the transferee or any Indebtedness of any Subsidiary that is not a Guarantor (other than obligations in respect of Disqualified Stock of such assets pursuant to a customary novation agreement that releases Subsidiary) and the Company release of the Company, such Guarantor or such Restricted Subsidiary from further liabilityall liability on such Indebtedness in connection with such Asset Sale;
(b2) in the case of an Asset Sale of a Property set forth in Category 3, Category 4 or Category 7 on Annex I hereto by the Subsidiary or Joint Venture owning such Property, the principal amount of any Indebtedness of such Subsidiary or Joint Venture repaid with the proceeds of such Asset Sale solely to the extent such Indebtedness has been incurred pursuant to Section 4.02(b)(3), (8), or (9) and has been secured by a Permitted Lien on such Property and on the Capital Stock in such Subsidiary incurred pursuant to clause (2) of the definition of Permitted Liens; and
(3) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such the transferee that are promptly converted by the recipient thereof Company or such Subsidiary into cash, Cash Equivalents or readily marketable securities cash within 180 days after receipt thereof (of the closing of such Asset Sale, to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion. The Company will not permit any Subsidiary to issue any Capital Stock of such Subsidiary to, or otherwise permit any such Capital Stock to be owned by, any Person other than the Company or any Subsidiary Guarantor, except upon a Collateral Disposition of all such Capital Stock to such a Person that complies with this Section 4.03. Pending the final application of any Net Available Cash from an Asset Sale (including a Collateral Disposition but excluding any Asset Sale of a Property, or of the Capital Stock of a Subsidiary solely owning a Property, set forth in Category 8 on Annex I hereto) or a Joint Venture Disposition, upon the receipt by the Company or a Subsidiary of the Net Available Cash attributable to an Asset Sale or a Joint Venture Disposition, the Company shall cause, or shall cause such Subsidiary to cause, such amounts (such amounts, the “Pending Use Cash”) to be deposited directly by the Company or such Subsidiary in a deposit account subject to a valid and perfected Lien in favor of the Collateral Agent free of any other Lien (other than the Lien of the Secured Debt Documents or any other Permitted Collateral Lien), and the Pending Use Cash will constitute Collateral pending application as a Permitted Excess Cash Use or as hereinafter described. Within 360 days (or 720 days with respect to an Event of Loss) after the actual receipt of any Net Available Cash by the Company or a Subsidiary from an Asset Sale (including an Event of Loss and a Collateral Disposition but excluding any Asset Sale of a Property, or of the Capital Stock of a Subsidiary solely owning a Property, set forth in Category 8 on Annex I hereto) or a Joint Venture Disposition, the Company (or the applicable Subsidiary, as the case may be) may apply such Net Available Cash (each such application a “Permitted Excess Cash Use”):
(A) to acquire all or substantially all of the assets of, or any Capital Stock of, another Related Business, if, after giving effect to any such acquisition of Capital Stock, the Related Business is or becomes a Subsidiary of the Company (such assets or Capital Stock, “Related Business Assets”);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1B) to repay make a capital expenditure to construct or otherwise retire debt under the Credit Facilities improve assets used or any other Indebtedness of the Restricted Subsidiaries of the Company useful in a Related Business (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Companysuch assets, “CapEx Assets”);
(2C) to repay acquire other Additional Assets (such Related Business Assets, CapEx Assets, Additional Assets or otherwise retire unsecured Indebtedness Specified Property referenced in clauses (A), (B), (C) and (E), collectively, the “Permitted Excess Cash Use Assets”);
(D) to fund distributions to qualify, or maintain the qualification of the REIT or any other parent of the Company, so long as a pro rata offer real estate investment trust for U.S. federal income tax purposes as such Permitted Excess Cash Use in this clause (D) is made approved in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued good faith by the CompanyBoards of Directors of both the Company and the REIT; provided that (x) the amount required to fund distributions shall take into account the extent to which the REIT may issue stock dividends that qualify for deduction under Code Section 561(a); (y) the aggregate cash amount under this clause (D) does not exceed $10 million in any calendar year; and (z) no Event of Default shall have occurred and be continuing or would occur as a consequence thereof; or
(3E) to invest repay at a discount any Non-Recourse Mortgage Indebtedness or Recourse Indebtedness of any Excluded Non-Guarantor Subsidiary owning any Property that immediately prior to such repayment does not constitute Collateral (such Property, “Specified Property”) to the extent such Permitted Excess Cash Use in Productive Assets; provided that any such amount this clause (E) is approved in good faith by the Boards of Net Proceeds which Directors of both the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of and the applicable Asset Sale may be invested in Productive Assets within two years of such Asset SaleREIT; provided that (1x) pending the final application as a result of such repayment, such Non-Recourse Mortgage Indebtedness or Recourse Indebtedness is satisfied and discharged in its entirety and, simultaneously with such repayment, all Liens on such Specified Property and any other property or assets of the amount Company or any Subsidiary securing such Indebtedness are released, (y) such Specified Property shall be deemed listed under Category 1 on Annex I hereto and the Company shall promptly deliver to the Collateral Agent the documents and certificates required by Section 4.14 and Article 12 of any such Applicable Proceeds pursuant to thisthis Indenture and (z) no Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
Appears in 1 contract
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, consummate an any Asset Sale unless:
(1i) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market Fair Market Value of the Property subject to such Asset Sale; provided, however, that with respect to PPM Asset Sales, the Company receives consideration at the time of such PPM Asset Sale at least equal to the lesser of (x) the Fair Market Value of such Property and (y) the net book value of such Property excluding any write-downs or reductions in net book value after March 31, 2009 other than as a result of normal course depreciation and amortization or casualty or destruction or, if specified in the assets or Equity Interests issued or sold or otherwise disposed of;
(2) applicable Management Services Agreement, the price at which the purchaser of such fair market value Property is determined by the Board of Directors of the Companyentitled to purchase such Property pursuant to such Management Services Agreement; and
(3ii) at least 75% of the consideration paid to the Company or such Restricted Subsidiary in connection with such Asset Sale is in the form of cash or cash equivalents. For the purposes of this covenant, the following are deemed to be cash or cash equivalents:
(1) the assumption of Debt of the Company (other than obligations in respect of Disqualified Stock of the Company) or any Restricted Subsidiary (other than obligations in respect of Disqualified Stock or Preferred Stock of a Subsidiary Guarantor) and the release of the Company or such Restricted Subsidiary from all liability on such Debt in connection with such Asset Sale, together with all other Asset Sales since ;
(2) securities received by the Issue Date on a cumulative basis (including by way of relief from, Company or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary is into cash within 90 days, to the extent of cash received in that conversion;
(3) with respect to PPM Asset Sales, (x) the form principal amount of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each any Debt of the following shall be deemed Company canceled or retired as consideration to be cash:
the Company or a Restricted Subsidiary in such PPM Asset Sale, (ay) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) Capital Stock of Parent received by the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by from the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(bz) any securities, promissory notes or other obligations consideration received by the Company or any such Restricted Subsidiary from the transferee; provided, however, that the aggregate amount of promissory notes with a maturity of greater than one year or other consideration received pursuant to this clause (3) (less the amount of cash received upon payment, return of capital, sale or disposition of such transferee that are converted by the recipient thereof into cash, Cash Equivalents promissory notes or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(cother consideration) Productive Assetsdoes not exceed $20,000,000; and
(d4) any Designated Noncash Consideration received by the Issuers Company or any Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (d4) that is at that time outstanding(less the amount of cash received upon payment, return of capital, sale or disposition of such Designated Noncash Consideration), not to exceed the greater of (ix) $4.5 billion 40,000,000 and (iiy) 3.02.5% of Total Assets, Tangible Assets at the time of the receipt of such Designated Noncash Consideration (with the fair market value 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. Within 450 days after the receipt of ).
(b) The Net Available Cash (or any Net Proceeds portion thereof) from an Asset Sale, Sales may be applied by the Company or a Restricted Subsidiary thereof may apply an amount equal Subsidiary, to the Applicable Percentage extent the Company or such Restricted Subsidiary elects (or is required by the terms of such Net Proceeds (the “Applicable Proceeds”) at its option:any Debt):
(1i) to repay or otherwise retire debt under the Credit Facilities or Repay First-Priority Lien Obligations Incurred pursuant to clause (2) of paragraph (b) of Section 4.03 (excluding, in any other Indebtedness of the Restricted Subsidiaries of such case, any Debt owed to the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary or an Affiliate of the Company);; or
(2ii) to repay 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 otherwise retire unsecured Indebtedness another Restricted Subsidiary).
(c) Any Net Available Cash from an Asset Sale not applied in accordance with the preceding paragraph within one year from the date of the Companyreceipt of such Net Available Cash (or, so long as if later, 90 days after the execution of any agreement with respect to such application, which agreement is signed within one year from the date of the receipt of such Net Available Cash) shall constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $25,000,000, the Company will be required to make an offer to purchase (the “Prepayment Offer”) the Securities which offer shall be in the amount of the Allocable Excess Proceeds, on a pro rata offer is made basis according to principal amount, at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to the purchase date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date), in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture. To the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided extent that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application portion of the amount of Net Available Cash remains after compliance with the preceding sentence and provided that all holders of Securities have been given the opportunity to tender their Securities for purchase in accordance with this Indenture, the Company or such Restricted Subsidiary may use such remaining amount for any such Applicable purpose permitted by this Indenture and the amount of Excess Proceeds pursuant will be reset to thiszero.
Appears in 1 contract
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, consummate an any Asset Sale unless:
(1i) the Company or such the Restricted Subsidiary receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) Property subject to such fair market value is determined by the Board of Directors of the CompanyAsset Sale; and
(3ii) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by paid to the Company or such the Restricted Subsidiary in connection with such Asset Sale is in the form of cash, cash or Cash Equivalents or readily marketable securities. For purposes the assumption by the purchaser of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof by operation of law or otherwise (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee as a result of any such assets pursuant to a customary novation agreement that releases which the Company or such and the Restricted Subsidiary from further liability;
(b) any securitiesSubsidiaries are no longer obligated with respect to those liabilities; provided that, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent for purposes of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) ii), Designated Non-Cash Consideration in an aggregate amount for all such Asset Sales that is at that any time outstanding, outstanding not to exceed the greater of (ix) $4.5 billion 50.0 million and (iiy) 3.02.75% of Consolidated Total Assets, with the fair market value of each item of Designated Noncash Consideration being measured Assets at the time received and of receipt of such Designated Non-Cash Consideration (measured as of the last day of the fiscal quarter most recently ended prior to the date of receipt thereof for which internal financial statements are available) (without giving effect to subsequent changes any write-off or write-down thereof) shall be deemed to be cash and Cash Equivalents. For the purposes of this Section 4.07:
(1) securities or other assets received by the Company or any Restricted Subsidiary from the transferee that are converted by the Company or such Restricted Subsidiary into cash within 180 days shall be considered to be cash to the extent of the cash received in value. Within 450 days after that conversion;
(2) any cash consideration paid to the receipt Company or the Restricted Subsidiary in connection with the Asset Sale that is held in escrow or on deposit to support indemnification, adjustment of purchase price or similar obligations in respect of such Asset Sale shall be considered to be cash;
(3) Productive Assets received by the Company or any Net Proceeds from an Restricted Subsidiary in connection with the Asset Sale shall be considered to be cash; and
(4) the requirement that at least 75% of the consideration paid to the Company or the Restricted Subsidiary in connection with the Asset Sale be in the form of cash or Cash Equivalents shall also be considered satisfied if the cash received constitutes at least 75% of the consideration received by the Company or the Restricted Subsidiary in connection with such Asset Sale, determined on an after-tax basis.
(b) The Net Available Cash (or any portion thereof) from Asset Sales may be applied by the Company or a Restricted Subsidiary, to the extent the Company or such Restricted Subsidiary thereof elects (or is required by the terms of any Debt):
(i) to repay Debt of the Company under clause (b) of the second paragraph of Section 4.04;
(ii) in the case of any Asset Sale by a Foreign Restricted Subsidiary, to repay any liability of one or more Foreign Restricted Subsidiaries;
(iii) to make capital expenditures or reinvest in Additional Assets (including by means of an Investment in Additional Assets by a Restricted Subsidiary with Net Available Cash received by the Company or another Restricted Subsidiary); or
(iv) any combination of the foregoing; provided that pending the final application of any such Net Available Cash in accordance with clause (a), (b), (c) or (d) above, the Company and its Restricted Subsidiaries may apply temporarily reduce Debt (including under a revolving Credit Facility) or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture.
(c) Any Net Available Cash from an Asset Sale not applied in accordance with the preceding paragraph within 365 days from the date of the receipt of such Net Available Cash (or in the event that the Company or any Restricted Subsidiary has entered into a binding agreement to make capital expenditures or acquire Additional Assets within such 365 day period, such period shall be extended for an additional 180 days with respect to the portion of such Net Available Cash so committed to be applied to such capital expenditures or such acquisition) or that the Company earlier elects to so designate shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds not previously subject to a Prepayment Offer exceeds $50.0 million, the Company will be required to make an offer to purchase (the “Prepayment Offer”) the Notes, which offer shall be in the amount of the Allocable Excess Proceeds, on a pro rata basis according to principal amount, at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the purchase date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date), in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture. To the extent that any portion of the amount of Net Available Cash remains after compliance with the preceding sentence and provided that all Holders of Notes have been given the opportunity to tender their Notes for purchase in accordance with this Indenture, the Company or such Restricted Subsidiary may use the remaining amount for any purpose permitted by this Indenture and the amount of Excess Proceeds will be reset to zero.
(1) Not later than ten Business Days after the Company is obligated to make a Prepayment Offer as described in the preceding paragraph, the Company shall send a written notice, by first-class mail (or electronic transmission in the case of Notes held in book-entry form), to the Holders of Notes, accompanied by information regarding the Company and its Subsidiaries as the Company in good faith believes will enable the Holders to make an informed decision with respect to that Prepayment Offer. The notice shall state, among other things, the purchase price and the purchase date, which shall be, subject to any contrary requirements of applicable law, a Business Day no earlier than 30 days nor later than 60 days from the date the notice is sent.
(2) Not later than the date upon which written notice of a Prepayment Offer is delivered to the Holders of Notes as provided above, the Company shall deliver to the Trustee an Officer’s Certificate as to (i) the amount of the Prepayment Offer (the “Offer Amount”), (ii) the allocation of the Net Available Cash from the Asset Sales pursuant to which such Prepayment Offer is being made and (iii) the compliance of such allocation with the provisions of clause (c) of this Section 4.07. On or before the purchase date, the Company shall also irrevocably deposit with the Trustee or with the Paying Agent (or, if the Company or a Wholly Owned Subsidiary is the Paying Agent, shall segregate and hold in trust) an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) Offer Amount to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made be held for payment in accordance with the procedures set forth in provisions of this Section. Upon the next paragraph expiration of the period for which the Prepayment Offer remains open (the “Offer Period”), the Company shall deliver to all holders of other unsecured Indebtedness issued the Trustee for cancellation the Notes or portions thereof that have been validly tendered and are to be accepted by the Company; or. The Trustee or the Paying Agent shall, on the purchase date, mail or deliver payment to each tendering Holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Offer Amount, the Trustee or the Paying Agent shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.07.
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which At the time the Company delivers Notes to the Trustee that are to be accepted for purchase, the Company shall also deliver an Officer’s Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section. A Note shall be deemed to have been accepted for purchase at the time the Trustee or a Restricted Subsidiary thereof has committed the applicable Paying Agent mails or delivers payment therefor to invest in Productive Assets within 450 days the surrendering Holder.
(e) The Company will comply, to the extent applicable, with the requirements of Section 14(e) of the applicable Asset Sale may be invested Exchange Act and any other securities laws or regulations in Productive Assets within two years connection with the repurchase of such Asset Sale; provided Notes pursuant to this Section 4.07. To the extent that (1) pending the final application of the amount provisions of any such Applicable Proceeds pursuant securities laws or regulations conflict with provisions of this Section 4.07, the Company will comply with the applicable securities laws and regulations and will not be deemed to thishave breached its obligations under this Section 4.07 by virtue thereof.
Appears in 1 contract
Limitation on Asset Sales. The Company Companies shall not, and shall not permit any Subsidiary to, consummate any Asset Sale other than (i) as the result of its Restricted a Casualty Event (or settlement of either thereof) or (ii) one or more Real Property Transfers or Subsidiary Equity Sales (collectively, "Permitted Asset Sales") meeting the requirements of this Section 4.09. The Companies may, and may permit their Subsidiaries to, consummate an any Permitted Asset Sale unless:
so long as (1x) the Company Companies or such Restricted Subsidiary receives consideration at the time of such Permitted Asset Sale at least equal to the fair market value Fair Market Value of the assets included in such Permitted Asset Sale, (y) not less than 67% of the consideration received by the Companies and its Subsidiaries pursuant to such Permitted Asset Sale (if other than a Casualty Event) is in the form of cash or Equity Interests issued Cash Equivalents and (z) such Net Available Proceeds are applied to the redemption of Notes (or deposited into a cash collateral account with the Trustee) as required pursuant to Section 3.08 hereof. If at any time any non-cash consideration is received by any Company or any Subsidiary, as the case may be, in connection with any Permitted Asset Sale, the Trustee shall hold such consideration in trust hereunder as collateral security for the obligations of the Companies in respect of the Notes; provided that at the time such consideration is repaid or converted into or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, for cash or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents (other than interest received with respect to any such non-cash consideration), then the date of such repayment, conversion or readily marketable securities. For purposes of this Section 4.11, each of the following disposition shall be deemed to be cash:
(a) any liabilities (as shown on constitute the Company’s or such Restricted Subsidiary’s most recent balance sheet) date of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers or any Restricted Subsidiary in such Permitted Asset Sale having an aggregate fair market valuehereunder, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) that is at that time outstanding, not to exceed and the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, 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. Within 450 days after the receipt of any Net Available Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made shall be applied in accordance with this Section 4.09. Anything herein to the procedures set forth in contrary notwithstanding, the next paragraph provisions of this Section 4.09 shall not be applicable to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending with respect to the final application of the amount of Excluded Entities or any such Applicable Proceeds pursuant to thisEquity Interests therein.
Appears in 1 contract
Sources: Indenture (Sac Holding Corp)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such the Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value (such Fair Market Value to be determined at the time of contractually agreeing to such Asset Sale) of the assets or Equity Capital Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(32) at least 75% of the consideration from such received in the Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Eligible Cash Equivalents or readily marketable securitiesEquivalents. For purposes of this Section 4.11provision, each of the following shall will 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) sheet of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation assignment and assumption agreement that releases the Company or such Restricted Subsidiary from further liability;; 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 recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities cash within 180 days after of their receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or a the applicable Restricted Subsidiary thereof Subsidiary, as the case may be) may apply an amount equal to the Applicable Percentage of such Net Cash Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay prepay, repay, redeem or otherwise retire debt under the Credit Facilities or purchase any secured Debt (other Indebtedness of the Restricted Subsidiaries than Subordinated Obligations) of the Company or any Restricted Subsidiary and cause such Debt to be permanently retired and the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed or repurchased;
(2) to prepay, repay, redeem or purchase any unsecured Debt (other than Indebtedness represented solely Subordinated Obligations) of the Company or any Restricted Subsidiary and cause such Debt to be permanently retired and the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed or repurchased; provided that to the extent the Company repays any such Debt, the Company shall equally and ratably repay the Notes as provided in Section 3.7, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by a guarantee making an Offer to Purchase (in accordance with the procedures relating to Asset Sales set forth in this Section 4.10) to all Holders of Notes to purchase their Notes at 100% of the principal amount thereof, plus accrued but unpaid interest to the date of purchase;
(3) to acquire all or substantially all of the assets of, or any Capital Interests of, another Permitted Business, if, after giving effect to any such acquisition of Capital Interests, the Permitted Business is or becomes a Restricted Subsidiary of the Company);
(24) to repay make a capital expenditure in or otherwise retire unsecured Indebtedness that is used or useful (as determined in the good faith judgment of the Company) in a Permitted Business or to make expenditures for maintenance, so long as a pro rata offer is made repair or improvement of existing properties and assets in accordance with the procedures set forth provisions of the Indenture;
(5) to acquire other assets that are not classified as current assets under GAAP and that are used or useful (as determined in the next good faith judgment of the Company) in a Permitted Business; or
(6) any combination of the foregoing. Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph of this Section 4.10 will constitute “Excess Proceeds” When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company will, within 30 days, make an Offer to Purchase to all Holders of Notes (on a pro rata basis to each series of Notes), and to all holders of other unsecured Indebtedness issued Debt ranking pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to assets sales, in an amount equal to the Excess Proceeds. The offer price in any Offer to Purchase will be equal to 100% of the principal amount plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Offer to Purchase, the Company may use those funds for any purpose not otherwise prohibited by this Indenture and they will no longer constitute Excess Proceeds. If the Company; or
(3) to invest in Productive Assets; provided that any such aggregate principal amount of Net Notes and other pari passu Debt tendered into such Offer to Purchase exceeds the amount of Excess Proceeds, the Trustee will select the Notes to be purchased on a pro rata basis among each series. Upon completion of each Offer to Purchase, the amount of Excess Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may will be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending reset at zero. Pending the final application of the amount of any such Applicable Net Cash Proceeds pursuant to thisthis covenant, such Net Cash Proceeds may be applied temporarily to reduce Indebtedness outstanding under a revolving credit facility or may otherwise be invested in any manner not prohibited by the Indenture. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will be deemed to have complied with its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Triumph Group Inc)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such the Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value (such Fair Market Value to be determined at the time of contractually agreeing to such Asset Sale) of the assets or Equity Capital Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(32) at least 75% of the consideration from such received in the Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Eligible Cash Equivalents or readily marketable securitiesEquivalents. For purposes of this Section 4.11, provision:
(A) each of the following shall will 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) sheet of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation assignment and assumption agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities cash within 180 days after of their receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);; and Exhibit 4.1
(c) Productive Assets; and
(d) any Designated Noncash Non-Cash Consideration received by the Issuers Company or any Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (dc) that is at that the time outstanding, not to exceed the greater of (ix) $4.5 billion 50.0 million and (iiy) 3.03.5% of Total Assetsthe Company’s Consolidated Net Tangible Assets at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value Fair Market Value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value. ; and
(B) the right to receive earnouts or similar deferred consideration based on performance shall not be considered as part of the consideration.
(b) Within 450 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or a the applicable Restricted Subsidiary thereof Subsidiary, as the case may be) may apply an amount equal to the Applicable Percentage of such Net Cash Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay prepay, repay, redeem or otherwise retire debt under the Credit Facilities or purchase any Secured Debt (other Indebtedness of the Restricted Subsidiaries than Subordinated Obligations) of the Company or any Restricted Subsidiary and cause such Debt to be permanently retired and the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed or repurchased;
(2) to prepay, repay, redeem or purchase any unsecured Debt (other than Indebtedness represented solely Subordinated Obligations) of the Company or any Restricted Subsidiary and cause such Debt to be permanently retired and the related commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed or repurchased; provided that to the extent the Company repays any such Debt, the Company shall equally and ratably repay the Notes as provided in SECTION 3.7, through open‑market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or by a guarantee making an Offer to Purchase (in accordance with the procedures relating to Asset Sales set forth in this SECTION 4.10) to all Holders of Notes to purchase their Notes at 100% of the principal amount thereof, plus accrued but unpaid interest to the date of purchase;
(3) to acquire all or substantially all of the assets of, or any Capital Interests of, another Permitted Business, if, after giving effect to any such acquisition of Capital Interests, the Permitted Business is or becomes a Restricted Subsidiary of the Company);
(24) to repay make a capital expenditure in or otherwise retire unsecured Indebtedness that is used or useful (as determined in the good faith judgment of the Company) in a Permitted Business or to make expenditures for maintenance, so long as a pro rata offer is made repair or improvement of existing properties and assets in accordance with the procedures set forth provisions of this Indenture;
(5) to acquire other assets that are not classified as current assets under GAAP and that are used or useful (as determined in the next paragraph good faith judgment of the Company) in a Permitted Business; or
(6) any combination of the foregoing.
(c) Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in SECTION 4.10(b) hereof will constitute “Excess Proceeds” When the aggregate amount of Excess Proceeds exceeds $50.0 million, the Company will, within 30 days, make an Offer to Purchase to all Holders of Notes, and to all holders of other unsecured Indebtedness issued Debt ranking pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to asset sales, in an amount equal to the Excess Proceeds. The offer price in any Offer to Purchase will be equal to 100% of the principal amount plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Offer to Purchase, the Company may use those funds for any purpose not otherwise prohibited by this Indenture, and they will no longer constitute Excess Proceeds. If the Company; or
(3) to invest in Productive Assets; provided that any such aggregate principal amount of Net Notes and other pari passu Debt tendered into such Offer to Purchase exceeds the amount of Exhibit 4.1 Excess Proceeds, the Trustee will select the Notes to be purchased on a pro rata basis among each series. Upon completion of each Offer to Purchase, the amount of Excess Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may will be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending reset at zero. Pending the final application of the amount of any such Applicable Net Cash Proceeds pursuant to thisthis SECTION 4.10, such Net Cash Proceeds may be applied temporarily to reduce Indebtedness outstanding under a revolving credit facility or may otherwise be invested in any manner not prohibited by this Indenture.
(d) The Company will comply with the requirements of Rule 14e‑1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will be deemed to have complied with its obligations under the Asset Sale provisions of this Indenture by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Moog Inc.)
Limitation on Asset Sales. (I)
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an any Asset Sale of any assets that do not constitute ABL Priority Collateral (“Non-ABL Priority Collateral”), unless:
(1) the Company or such the applicable Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed ofof (as determined in good faith by the Company’s Board of Directors);
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or the Restricted Subsidiary, as the case may be, from such Restricted Subsidiary is Asset Sale shall be in the form of cash, Cash Equivalents or readily marketable securities. For purposes and is received at the time of this Section 4.11, each of such disposition; provided that the following shall be deemed to be cashamount of:
(a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any such Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Guarantee of a Guarantor) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;assets; and
(b) any securities, notes or other obligations Obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or such Restricted Subsidiary into cash, cash or Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, such cash or Cash Equivalents or readily marketable securities received received) within 90 days following the closing of such Asset Sale (clause (a) and (b) collectively, “Non-Cash Consideration”) shall, in that conversioneach case, be deemed to be cash for purposes of this clause (2);
(c3) Productive Assets; and
(d) without limitation of the provisions described in Section 4.17, to the extent that any Designated Noncash Consideration consideration received by the Issuers Company or any Restricted Subsidiary in such Asset Sale having an (including, for the avoidance of doubt, any Non-Cash Consideration) consists of assets that constitute Notes Priority Collateral, such assets, including the assets of any Person that becomes a Guarantor as a result of such transaction, are concurrently with their acquisition added to the Notes Priority Collateral; and
(4) the Net Cash Proceeds from any such Asset Sale of Notes Priority Collateral is paid directly by the purchaser thereof to the Notes Collateral Agent to be held in trust in a Collateral Account for application in accordance with this Section 4.06. Notwithstanding the provisions of Section 4.06(I)(a), the Company and the Restricted Subsidiaries shall not be required to cause any Net Cash Proceeds to be held in a Collateral Account in accordance with Section 4.06(I)(a)(4) except to the extent the aggregate fair market valueNet Cash Proceeds from all Asset Sales of Notes Priority Collateral which are not held in a Collateral Account, taken together with all other Designated Noncash Consideration received pursuant to this clause (d) that is at that time outstanding, or have not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, been previously applied in accordance with the fair market value provisions of each item this Section 4.06 relating to the application of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value. Within 450 days after the receipt of any Net Cash Proceeds from Asset Sales of Notes Priority Collateral, exceeds $10,000,000.
(b) Upon the consummation of an Asset Sale covered by Section 4.06(I), other than any Major Asset Sale, the Company shall apply, or a cause such Restricted Subsidiary thereof may apply an amount equal to apply, the Applicable Percentage Net Cash Proceeds relating to such Asset Sale within 365 days of such Net Proceeds (the “Applicable Proceeds”) at its optionreceipt thereof:
(1) to repay make one or otherwise more offers to the Purchaser and the Security Holders to redeem Notes, together with Indenture Obligations, pursuant to and subject to the conditions contained in this Agreement as further described below; provided, however, that in connection with any redemption of Indebtedness pursuant to this clause (1), the Company or such Restricted Subsidiary shall permanently retire debt such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so redeemed; provided further that if the Company or such Restricted Subsidiary shall so reduce any Indenture Obligations, the Company will equally and ratably reduce Indebtedness under the Credit Facilities or any other Indebtedness Notes by making an offer to the Purchaser to redeem at a purchase price equal to 100% of the Restricted Subsidiaries principal amount thereof, plus accrued and unpaid interest, if any, the pro rata principal amount of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of Notes, such offer to be conducted in accordance with the Company)procedures set forth below for an Net Proceeds Offer but without any further limitation in amount;
(2) to repay make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale or otherwise retire unsecured in properties and assets (including Capital Stock) that will be used in the business of the Company and its Restricted Subsidiaries as existing on the Closing Date or in businesses reasonably related thereto (“Replacement Assets”); provided that, without limitation of the provisions described in Section 4.17 any such Replacement Assets, including the assets of any Person that becomes a Guarantor as a result of such transactions acquired with Net Cash Proceeds from an Asset Sale of Notes Priority Collateral are concurrently with their acquisition added to the Notes Priority Collateral;
(3) to the extent such Net Cash Proceeds are from Asset Sales of Collateral or Capital Stock deemed not to be part of the Collateral pursuant to this Agreement and the Security Documents, to permanently reduce Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Company, so long a Guarantor or a Restricted Subsidiary; or
(4) to make one or more Restricted Payments to the extent permitted under Section 4.04; provided that, in the case of Section 4.06(I)(b)(2), if and to the extent that, within 365 days after the Asset Sale that generated the Net Cash Proceeds, the Company or any Restricted Subsidiary has entered into and not abandoned or rejected a binding agreement to consummate any such investment (an “Acceptable Commitment”) and such investment is thereafter completed within 180 days after such 365-day period, the Company and its Restricted Subsidiaries shall be deemed to have complied with Section 4.06(I)(b)(2); provided further that if any Acceptable Commitment is later cancelled or terminated for any reason before such Net Cash Proceeds are applied, then such Net Cash Proceeds shall constitute a part of the Net Proceeds Offer Amount;
(c) On the 366th day (or, if extended in accordance with the proviso in the preceding paragraph, the 546th day) after an Asset Sale covered by Section 4.06(I)(b) or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in Section 4.06(I)(b)(1), (2), (3) and (4), and, with respect to any Major Asset Sale, on the 20th day after such Asset Sale (each, a pro rata “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Cash Proceeds which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in Section 4.06(I)(b)(1), (2), (3) and (4) and, with respect to any Major Asset Sale, 100% of the Net Cash Proceeds of such Asset Sale (each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer is made to purchase (the “Net Proceeds Offer”) to the Purchaser and, to the extent required by the terms of the Indenture Documents, to all holders of Indenture Obligations, to purchase the maximum aggregate principal amount of the Notes and any such Indenture Obligations that may be purchased out of the Net Proceeds Offer Amount at an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Indenture Obligations, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Agreement or the next paragraph to all agreements governing the Indenture Obligations, as applicable, on a date not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from the Purchaser (and holders of any such Indenture Obligations) on a pro rata basis but in round denominations, which in the case of the Notes shall be minimum denominations of $2,000 principal amount or any greater integral multiple of $1,000 thereof; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other unsecured Indebtedness issued than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.06.
(d) Except with respect to any Major Asset Sale, the Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $50,000,000 resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $50,000,000, shall be applied as required pursuant to this Section 4.06).
(e) Each Net Proceeds Offer shall be mailed to the Purchaser within 25 days following the Net Proceeds Offer Trigger Date, and shall comply with the procedures set forth in Section 4.06(V). Upon receiving notice of the Net Proceeds Offer, the Purchaser may elect to have its Notes redeemed by the Company in whole or in part in minimum denominations of $2,000 principal amount or any greater integral multiple of $1,000 thereof in exchange for cash. To the extent the Purchaser properly make such election and holders of Indenture Obligations properly tender such Indenture Obligations in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Indenture Obligations will be purchased on a pro rata basis based on the aggregate amounts of Notes elected to be redeemed and Indenture Obligations tendered. A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. If any Net Cash Proceeds remain after the consummation of any Net Proceeds Offer, the Company may use those Net Cash Proceeds for any purpose not otherwise prohibited by this Agreement. Upon completion of each Net Proceeds Offer, the amount of Net Cash Proceeds covered by Section 4.06(I) will be reset at zero.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate any Asset Sale of any ABL Priority Collateral, unless:
(1) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of (as determined in good faith by the Company’s Board of Directors); orand
(2) at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash (including Non-Cash Consideration) and/or Cash Equivalents and is received at the time of such disposition.
(b) Upon the consummation of an Asset Sale covered by this Section 4.06(II), other than any Major Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof:
(1) to permanently reduce Indebtedness under the Credit Agreement or any other Indebtedness of the Company or a Guarantor that, in each case, is secured by a Lien on the ABL Priority Collateral that is prior to the Lien on the ABL Priority Collateral in favor of the Notes Collateral Agent (and, in the case of revolving obligations, to effect a permanent reduction in the availability under such revolving facilities), in each case other than Indebtedness owed to the Company or a Subsidiary of the Company;
(2) to make an Investment in Replacement Assets;
(3) to invest in Productive Assetsmake one or more Restricted Payments to the extent permitted under Section 4.04; or
(4) a combination of the foregoing; provided that, in the case of Section 4.06(II)(b)(2), an Acceptable Commitment shall be treated as a permitted application of the Net Cash Proceeds from the date of such commitment; provided further that if any Acceptable Commitment is later cancelled or terminated for any reason before such Net Cash Proceeds are applied, then such Net Cash Proceeds shall constitute a part of the Net ABL Proceeds Offer Amount;
(c) On the 366th day (or, if extended in accordance with the proviso in the preceding paragraph, the 546th day) after an Asset Sale covered by Section 4.06(II)(b) or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in Section 4.06(II)(b)(1), (2), (3), and (4), and, with respect to any Major Asset Sale, on the 20th day after such Asset Sale (each, a “Net ABL Proceeds Offer Trigger Date”), such aggregate amount of Net Cash Proceeds which have not been applied on or before such Net ABL Proceeds Offer Trigger Date as permitted in Section 4.06(II)(b)(1), (2), (3), and (4) and, with respect to any Major Asset Sale, 100% of the Net Cash Proceeds of such Asset Sale that are not required to be applied as a prepayment pursuant to the terms of the Credit Agreement (it being understood that any such amount of prepayment shall be permitted under this Section 4.06(II)(c) (each, a “Net ABL Proceeds which Offer Amount”) shall be applied by the Company or a such Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days make an offer to purchase (the “Net ABL Proceeds Offer”) to the Purchaser and, to the extent required by the terms of the applicable Asset Sale Indenture Obligations, to all holders of such Indenture Obligations, to redeem the maximum aggregate principal amount of the Notes and any such Indenture Obligations that may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application redeemed out of the Net ABL Proceeds Offer Amount at a redemption price in cash in an amount equal to 100% of the principal amount of the Notes and Indenture Obligations, in each case, plus accrued and unpaid interest, if any, to, but not including, the date of purchase, in accordance with the procedures set forth in this Agreement or the agreements governing the Indenture Obligations, as applicable, on a date not less than 30 nor more than 45 days following the applicable Net ABL Proceeds Offer Trigger Date, from the Purchaser (and holders of any such Applicable Indenture Obligations) on a pro rata basis but in round denominations, which in the case of the Notes will be minimum denominations of $2,000 principal amount or any greater integral multiple of $1,000 thereof; provided, however, that if at any time any Non-Cash Consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such Non-Cash Consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.06.
(d) Except with respect to any Major Asset Sale, the Company may defer the Net ABL Proceeds Offer until there is an aggregate unutilized Net ABL Proceeds Offer Amount equal to or in excess of $50,000,000 resulting from one or more Asset Sales (at which time, the entire unutilized Net ABL Proceeds Offer Amount, and not just the amount in excess of $50,000,000, shall be applied as required pursuant to thisthis paragraph).
(e) Each Net ABL Proceeds Offer shall be mailed to the Purchaser within 25 days following the Net ABL Proceeds Offer Trigger Date, and shall comply with the procedures set forth in this Agreement. Upon receiving notice of the Net Proceeds Offer, the Purchaser may elect for its Notes to be redeemed by the Company in whole or in part in minimum denominations of $2,000 principal amount or any greater integral multiple of $1,000 thereof in exchange for cash. To the extent the Purchaser properly make such election and holders of Indenture Obligations properly tender such Indenture Obligations in an amount exceeding the Net ABL Proceeds Offer Amount, the tendered Notes and Indenture Obligations will be purchased on a pro rata basis based on the aggregate amounts of Notes and Indenture Obligations tendered. A Net ABL Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. If
Appears in 1 contract
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or such the Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person person assuming responsibility for, any liabilityliabilities, contingent or otherwise) at the time of the Asset Sale at least equal to the Fair Market Value (such Fair Market Value to be determined on the date a legally binding commitment for such Asset Sale was entered into) of the assets or Capital Interests issued or sold or otherwise disposed of; and
(ii) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary Subsidiary, together with all other Asset Sales since the Issue Date (on a cumulative basis) is in the form of cash, cash or Cash Equivalents or readily marketable securitiesEquivalents. For purposes of this Section 4.113.7(a) (ii), each of the following shall will 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) sheet of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement or that releases are otherwise cancelled or terminated in connection with the Company or transaction with such Restricted Subsidiary from further liabilitytransferee;
(b) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities cash within 180 days after of their receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(c) Productive Assets; andIndebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of such Indebtedness in connection with the Asset Sale;
(d) any Designated Noncash Non-cash Consideration received by the Issuers Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value (determined on the date a legally binding commitment for the relevant Asset Sale (or, if later, for the payment of such item) was entered into), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (dc) that is at that time outstanding, not to exceed the greater of (ix) $4.5 billion 125.0 million and (iiy) 3.013.90% of Consolidated Total AssetsAssets at the time the applicable agreement was entered into, with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and each applicable agreement was entered into without giving effect to subsequent changes in value. ; and
(e) any Investment, stock, asset, property or capital expenditure of the kind referred to in clauses (3), (4) or (5) of Section 3.7(b).
(b) Within 450 365 days after the receipt of any Net Cash Proceeds from an Asset SaleSale (the “Asset Sale Proceeds Application Period”), the Company (or a any Restricted Subsidiary thereof Subsidiary) may apply an amount equal to the Applicable Percentage of such Net Cash Proceeds (the “Applicable Proceeds”) at its option:
(1) (A) solely to repay the extent that such Net Cash Proceeds are derived from an Asset Sale of ABL Priority Collateral, to prepay, repay, redeem, purchase or otherwise retire debt under the Credit Facilities or cash collateralize any other Indebtedness of the Restricted Subsidiaries ABL Obligations of the Company (other than Indebtedness represented solely by a guarantee of a or any Restricted Subsidiary of the Company)Subsidiary;
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to this
Appears in 1 contract
Sources: Indenture (Lannett Co Inc)
Limitation on Asset Sales. 4.14.1 The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an make any Asset Sale unlessunless the following conditions are met:
(1i) the Company or such Restricted Subsidiary receives consideration at the time of such The Asset Sale at least equal to the is for fair market value of value, as determined in good faith by the assets or Equity Interests issued or sold or otherwise disposed ofCompany;
(2ii) such fair market value is determined by the Board of Directors of the Company; and
(3) at At least 75% 75 per cent. of the consideration from such Asset Saleconsists of all or part of any of the following, together with all other Asset Sales since received at closing, (i) cash and cash equivalents (consisting of marketable securities issued by the Issue Date on a cumulative basis (including by way of relief fromBrazilian federal government or any agency or subdivision thereof, or by any other Person assuming responsibility forfirst tier U.S. financial institution or its Brazilian subsidiary or affiliate, or by any liability, contingent first tier Brazilian financial institution) or otherwise(ii) received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liabilityProductive Assets;
(biii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Net Cash Proceeds may be used:
(a) to permanently repay Debt other than Subordinated Debt of the Company or any of its Subsidiaries (and in the case of a Restricted revolving credit, permanently reduce the commitment thereunder by such amount), in each case owing to a Person other than the Company or any Subsidiary;
(b) to acquire all or substantially all of the assets of a Permitted Business, or a majority of the Voting Stock of another Person that thereupon becomes a Subsidiary engaged in a Permitted Business, or to make capital expenditures or otherwise acquire long-term assets that are to be used in a Permitted Business; or
(c) to acquire Productive Assets for the Company or any of its Subsidiaries;
(iv) The Net Cash Proceeds of an Asset Sale not applied pursuant to clause 4.14.1(iii) within 360 days of the Asset Sale shall constitute “Excess Proceeds”. Excess Proceeds of less than US$20.0 million (or the equivalent thereof may apply at the time of determination) will be carried forward and accumulated. When accumulated Excess Proceeds equals or exceeds US$20.0 million, the Company must, within 30 days and subject to the provisions of clause 3.5.6 above, make an Offer to Purchase Notes having a principal amount equal to:
(a) accumulated Excess Proceeds, multiplied by
(b) a fraction (x) the numerator of which is equal to the then outstanding principal amount of the Notes and (y) the denominator of which is equal to the then outstanding principal amount of the Notes and all pari passu Debt similarly required to be repaid, redeemed or tendered for in connection with the Asset Sale, rounded down to the nearest US$1,000. The purchase price for the Notes will be 100 per cent. of the principal amount plus accrued interest to the date of purchase. If the Offer to Purchase is for less than all of the outstanding Notes and Notes in an aggregate principal amount in excess of the purchase amount are tendered and not withdrawn pursuant to the offer, the Company will purchase Notes having an aggregate principal amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as purchase amount on a pro rata offer is made basis, with adjustments so that only Notes in accordance multiples of US$1,000 with the procedures set forth in the next paragraph to all holders a minimum denomination of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days US$100,000 will be purchased. Upon completion of the applicable Asset Sale may Offer to Purchase, Excess Proceeds will be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thisreset at zero.
Appears in 1 contract
Sources: Indenture (JBS USA Holdings, Inc.)
Limitation on Asset Sales. The Company At any time other than during a Suspension Period, the Issuer shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, consummate an any Asset Sale unless:
(1) the Company Issuer or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) included in such fair market value is determined by the Board of Directors of the CompanyAsset Sale; and
(32) at least 75% of the total consideration from received in such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way Sale consists of relief from, cash or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securitiesEquivalents. For purposes of this Section 4.11clause (2), each of the following shall be deemed to be cash:
(a) the amount (without duplication) of any liabilities Indebtedness of the Issuer or such Restricted Subsidiary that is assumed (as shown on expressly or by operation of law) by the Company’s transferee in such Asset Sale and with respect to which the Issuer or such Restricted Subsidiary’s most recent balance sheet) of , as the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;case may be, is no longer liable,
(b) the amount of any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are within 180 days converted by the recipient thereof into cash, Cash Equivalents Issuer or readily marketable securities within 180 days after receipt thereof such Restricted Subsidiary to cash (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversioncash actually so received);,
(c) Productive Assets; the Fair Market Value of any assets received by the Issuer or any Restricted Subsidiary to be used by it in the Permitted Business, and
(d) any Designated Noncash Non-cash Consideration received by the Issuers Issuer or any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an Sale; provided that the aggregate fair market valueFair Market Value of such Designated Non-cash Consideration, taken together with the Fair Market Value at the time of receipt of all other Designated Noncash Non-cash Consideration received pursuant to this clause (d) that less the amount of Net Available Proceeds previously realized in cash from prior Designated Non-cash Consideration is at that time outstanding, not to exceed less than the greater of (ix) $4.5 billion and (ii) 3.02.5% of Total Assets, Assets at the time of receipt of such Designated Non-cash Consideration (with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), and (y) $75.0 million. Within 450 days after If at any time any non-cash consideration received by the receipt Issuer or any Restricted Subsidiary of the Issuer, as the case may be, in connection with any Asset Sale is repaid or converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then the date of such repayment, conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Available Proceeds from thereof shall be applied in accordance with this Section 4.10. If the Issuer or any Restricted Subsidiary engages in an Asset Sale, the Company Issuer or a such Restricted Subsidiary thereof may shall, no later than 365 days following the consummation thereof, apply an amount equal to all or any of the Applicable Percentage of such Net Available Proceeds (the “Applicable Proceeds”) at its optiontherefrom to:
(1) to repay or otherwise retire debt satisfy all mandatory repayment obligations under the Credit Facilities or any other Indebtedness Agreement arising by reason of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company)such Asset Sale;
(2) repay any Indebtedness which was secured by the assets sold in such Asset Sale;
(3) invest all or any part of the Net Available Proceeds thereof in the purchase of assets to be used by the Issuer or any Restricted Subsidiary in the Permitted Business; and/or
(4) in the case of any Restricted Subsidiary that is not a Guarantor, repay Indebtedness of such Restricted Subsidiary. The amount of Net Available Proceeds not applied or otherwise retire unsecured invested as provided in this paragraph will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds equals or exceeds $20.0 million, the Issuer will be required to make an offer to purchase from all Holders and, if applicable, redeem (or make an offer to do so) any Pari Passu Indebtedness of the CompanyIssuer the provisions of which require the Issuer to redeem such Indebtedness with the proceeds from any Asset Sales (or offer to do so), so long in an aggregate principal amount of Notes and such Pari Passu Indebtedness equal to the amount of such Excess Proceeds as follows:
(1) the Issuer will (a) make an offer to purchase (a pro rata offer is made “Net Proceeds Offer”) to all Holders in accordance with the procedures set forth in this Indenture, and (b) redeem (or make an offer to do so) any such other Pari Passu Indebtedness, pro rata in proportion to the next paragraph respective principal amounts of the Notes and such other Indebtedness required to all holders be redeemed, the maximum principal amount of other unsecured Notes and Pari Passu Indebtedness issued by that may be redeemed out of the Company; oramount (the “Payment Amount”) of such Excess Proceeds;
(2) the offer price for the Notes will be payable in cash in an amount equal to 100% of the principal amount of the Notes tendered pursuant to a Net Proceeds Offer, plus accrued and unpaid interest thereon, if any, to the date such Net Proceeds Offer is consummated (the “Offered Price”), in accordance with the procedures set forth in this Indenture and the redemption price for such Pari Passu Indebtedness (the “Pari Passu Indebtedness Price”) shall be as set forth in the related documentation governing such Indebtedness;
(3) if the aggregate Offered Price of Notes validly tendered and not withdrawn by Holders thereof exceeds the pro rata portion of the Payment Amount allocable to invest in Productive Assetsthe Notes, Notes to be purchased will be selected on a pro rata basis; provided that any and
(4) upon completion of such amount of Net Proceeds which Offer in accordance with the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of foregoing provisions, the amount of any Excess Proceeds with respect to which such Applicable Net Proceeds Offer was made shall be deemed to be zero. To the extent that the sum of the aggregate Offered Price of Notes tendered pursuant to thisa Net Proceeds Offer and the aggregate Pari Passu Indebtedness Price paid to the holders of such Pari Passu Indebtedness is less than the Payment Amount relating thereto (such shortfall constituting a “Net Proceeds Deficiency”), the Issuer may use the Net Proceeds Deficiency, or a portion thereof, for general corporate purposes, subject to the provisions of this Indenture. In the event of the transfer of substantially all (but not all) of the assets of the Issuer and the Restricted Subsidiaries as an entirety to a Person in a transaction covered by and effected in accordance with Section 5.01, the successor corporation shall be deemed to have sold for cash at Fair Market Value the assets of the Issuer and the Restricted Subsidiaries not so transferred for purposes of this Section 4.10, and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were an Asset Sale (with such Fair Market Value being deemed to be Net Available Proceeds for such purpose). The Issuer will comply with applicable tender offer rules, including the requirements of Rule 14e-1 under the Exchange Act and any other applicable laws and regulations in connection with the purchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this Section 4.10, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue of this compliance.
Appears in 1 contract
Sources: Indenture (Massey Energy Co)
Limitation on Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an make any Asset Sale unless:
(1a) the Company or such Restricted Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming sole responsibility for, any liabilityliabilities, contingent or otherwise) at the time of such Asset Sale at least equal to the Fair Market Value of the shares and/or assets subject to such Asset Sale; or
(b) at least 75% of the consideration thereof received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11, each of and Cash Equivalents; provided that the following shall be deemed to be cash:
cash for purposes of this clause (ab): (i) the amount of any liabilities (as shown on the Company’s ’s, or such Restricted Subsidiary’s ’s, most recent balance sheetsheet or in the notes thereto) of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases assets; (ii) the amount of any Marketable Securities received by the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received such transferee that is converted by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof cash (to the extent of the cashcash received) within 30 days following the closing of such Asset Sale; (iii) the Fair Market Value of any Capital Stock of a Person engaged in a Related Business that will become, Cash Equivalents upon purchase, a Restricted Subsidiary or readily marketable securities received assets (other than current assets as determined in that conversion);
(caccordance with IFRS or Capital Stock) Productive Assets; and
(d) any Designated Noncash Consideration received to be used by the Issuers Company or any Restricted Subsidiary in a Related Business; and (iv) all instruments (including, for the avoidance of doubt, promissory notes, money market investments, marketable securities, checks and deferred payment checks (cheques de pago diferido)) by whomever issued which, by their terms, are payable or may be required to be paid in cash within six months of their issuance; provided that (x) amounts received pursuant to subclauses (b)(i) and (b)(iii) shall not be deemed to constitute Net Cash Proceeds for purposes of making an Asset Sale Offer; (y) Marketable Securities will constitute cash (for purposes of subclause (b)(ii)) with respect to the Fair Market Value thereof on the date on which such Marketable Securities were received by the Company or such Restricted Subsidiary; and (z) the principal amount payable under any instrument referred to in clause (iv) above, will be deemed to have been received as Net Cash Proceeds of the relevant Asset Sale on the date on which such instrument was received by the Company or the applicable Restricted Subsidiary. The Company or such Restricted Subsidiary, as the case may be, may apply the Net Cash Proceeds of any Asset Sale within 365 days after such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause to:
(da) repay any of the Company’s or such Restricted Subsidiary’s Indebtedness that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, pari passu with the fair Notes (whether through optional or mandatory prepayments or redemptions, or tender offers or open market value or other privately negotiated purchases, so long as such repaid Indebtedness is immediately extinguished); provided that in connection with any such repayment of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, pari passu Indebtedness the Company offers to redeem a pro rata portion of the Notes based on the relative Outstanding principal amount of the Notes and such other Indebtedness, or
(b) make capital expenditures in a Related Business, or a (c) reinvest in or purchase Additional Assets (including by means of an investment in or purchase of Additional Assets by any Restricted Subsidiary thereof may apply with cash in an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:
(1) to repay or otherwise retire debt under the Credit Facilities or any other Indebtedness of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
(3) to invest in Productive Assets; provided that any such amount of Net Proceeds which Available Cash or Capital Stock to be used by the Company or a any Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thisa Related Business), or
Appears in 1 contract
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company or such Restricted Subsidiary Subsidiary, as the case may be, receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3ii) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since received for the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received assets sold by the Company or such the Restricted Subsidiary Subsidiary, as the case may be, in the Asset Sale is in the form of (1) cash or Cash Equivalents; (2) assets (other than current assets as determined in accordance with Mexican FRS or Capital Stock) to be used by the Company or any Restricted Subsidiary in a Permitted Business; (3) Capital Stock in a Person engaged solely in a Permitted Business that shall become a Restricted Subsidiary as a result of such Asset Sale; or (4) a combination of cash, Cash Equivalents or readily marketable securitiesand such assets. For Solely for the purposes of this Section 4.113.10(a), each of the following shall be are deemed to be cash:
cash or Cash Equivalents: (ax) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) assumption of Indebtedness of the Company or any Restricted Subsidiary thereof (other than contingent liabilities by any Person and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee release of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
any liability in connection with the Asset Sale; and (by) any securities, notes or other obligations securities received by the Company or any such Restricted Subsidiary from such transferee that are promptly converted by the recipient Company or any Restricted Subsidiary into cash or Cash Equivalents.
(b) The Company or such Restricted Subsidiary, as the case may be, may apply the Net Cash Proceeds of any such Asset Sale within 365 days thereof to:
(i) repay, prepay or purchase any Senior Indebtedness of the Company or any Restricted Subsidiary, in each case for borrowed money or constituting a Capitalized Lease Obligation and permanently reduce the commitments with respect thereto without Refinancing; or
(ii) purchase (or enter into cash, Cash Equivalents or readily marketable securities a binding agreement to purchase; provided that such purchase is consummated within 180 90 days after receipt thereof the date that is 365 days after such Asset Sale):
(1) assets (other than current assets as determined in accordance with Mexican FRS or Capital Stock) to be used by the extent Company or any Restricted Subsidiary in a Permitted Business; or
(2) Capital Stock of a Person engaged solely in a Permitted Business that shall become, upon purchase, a Restricted Subsidiary, in each case from a Person other than the cash, Cash Equivalents or readily marketable securities received in that conversion)Company and its Restricted Subsidiaries;
(c) Productive Assets; To the extent all or a portion of the Net Cash Proceeds of any Asset Sale are not applied within the 365 days of the Asset Sale as described in Section 3.10(b)(i) or Section 3.10(b)(ii) (or, if a binding agreement has been entered into as set forth in Section 3.10(b)(ii), the date of the expiration of the 90-day period set forth in such Section 3.10(b)(ii)), the Company shall make an offer to purchase Notes (the “Asset Sale Offer”), at a purchase price equal to 100% of the principal amount of the Notes to be purchased, plus any accrued and unpaid interest thereon, to the purchase date (the “Asset Sale Offer Amount”). The Company shall purchase pursuant to an Asset Sale Offer from all tendering Holders on a pro rata basis, and, at the Company’s option, on a pro rata basis with the holders of any other Senior Indebtedness with similar provisions requiring the Company to offer to purchase the other Senior Indebtedness with the proceeds of Asset Sales, that principal amount (or accreted value in the case of Indebtedness issued with original issue discount) of Notes and the other Senior Indebtedness to be purchased equal to such unapplied Net Cash Proceeds. The Company may satisfy its obligations under this Section 3.10 with respect to the Net Cash Proceeds of an Asset Sale by making an Asset Sale Offer prior to the expiration of the relevant 365-day period.
(d) any Designated Noncash Consideration received by The purchase of Notes pursuant to an Asset Sale Offer shall occur on a date not less than 20 Business Days following the Issuers date thereof, or any Restricted Subsidiary in such longer period as may be required by applicable law or regulation, nor more than 60 days following the 365th day following the Asset Sale having (or, if a binding agreement has been entered into as set forth in Section 3.10(b)(ii), not more than 60 days following the date of the expiration of the 90-day period set forth in Section 3.10(b)(ii)). The Company may, however, defer an Asset Sale Offer until there is an aggregate fair market valueamount of unapplied Net Cash Proceeds from one or more Asset Sales equal to or in excess of U.S.$25.0 million (or the equivalent in other currencies). At that time, taken together with all the entire amount of unapplied Net Cash Proceeds, and not just the amount in excess of U.S.$25.0 million (or the equivalent in other Designated Noncash Consideration received currencies), shall be applied as required pursuant to this clause Section 3.10. Pending application in accordance with this Section 3.10, Net Cash Proceeds shall be applied to temporarily reduce revolving credit borrowings, if any, that can be re-borrowed or Invested in Cash Equivalents.
(de) Upon receiving the Asset Sale Offer Notice, Holders may elect to tender their Notes in whole or in part in integral multiples of U.S.$1,000 in exchange for cash; provided that is at that time outstandingthe principal amount of each such tendering Holder’s Note shall not be less than U.S.$100,000.
(f) On the Asset Sale Offer Payment Date, not the Company shall, to exceed the greater of extent lawful:
(i) $4.5 billion and accept for payment all Notes or portions thereof properly tendered pursuant to the Asset Sale Offer;
(ii) 3.0% of Total Assets, deposit 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 Paying Agent funds in value. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage Asset Sale Offer Amount in respect of such Net Proceeds (the “Applicable Proceeds”) at its option:all Notes or portions thereof so tendered; and
(1iii) deliver or cause to repay be delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or otherwise retire debt under portions thereof being purchased by the Credit Facilities Company.
(g) To the extent that Holders of Notes and holders of other Senior Indebtedness, if any, which are the subject of an Asset Sale Offer properly tender and do not withdraw Notes or any the other Senior Indebtedness in an aggregate amount exceeding the amount of unapplied Net Cash Proceeds, the Company shall purchase the Notes and the other Senior Indebtedness on a pro rata basis (based on amounts tendered). If only a portion of a Note is purchased pursuant to an Asset Sale Offer, a new Note in a principal amount equal to the portion thereof not purchased shall be issued in the name of the Restricted Subsidiaries Holder thereof upon cancellation of the original Note (or appropriate adjustments to the amount and beneficial interests in a Global Note shall be made, as appropriate). Notes (or portions thereof) purchased pursuant to an Asset Sale Offer shall be cancelled and cannot be reissued.
(h) Upon completion of an Asset Sale Offer, the amount of Net Cash Proceeds shall be reset at zero. Accordingly, to the extent that the aggregate amount of Notes and other Senior Indebtedness tendered pursuant to an Asset Sale Offer is less than the aggregate amount of unapplied Net Cash Proceeds, the Company may use any remaining Net Cash Proceeds for general corporate purposes of the Company and its Restricted Subsidiaries.
(i) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 4.1 the Surviving Entity shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 3.10, and shall comply with the provisions of this Section 3.10 with respect to the deemed sale as if it were an Asset Sale. In addition, the Fair Market Value of properties and assets of the Company or its Restricted Subsidiaries so deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 3.10.
(j) For the purposes of this Section 3.10, if at any time, any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of interest received with respect to any non-cash consideration), the Company);
(2) conversion or disposition shall be deemed to repay or otherwise retire unsecured Indebtedness of constitute an Asset Sale hereunder and the Company, so long as a pro rata offer is made Net Cash Proceeds thereof shall be applied in accordance with the procedures set forth in the next paragraph to all holders this covenant within 365 days of other unsecured Indebtedness issued by the Company; orconversion or disposition.
(3k) The Company shall comply with the requirements of Rule 14e-l under the Exchange Act and any other applicable securities laws in connection with the purchase of Notes pursuant to invest in Productive Assets; provided an Asset Sale Offer. To the extent that the provisions of any such amount of Net Proceeds which applicable securities laws or regulations conflict with this Section 3.10, the Company or a Restricted Subsidiary thereof has committed shall comply with those laws and regulations and shall not be deemed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thishave breached its obligations under this Section 3.10 by doing so.
Appears in 1 contract
Sources: Indenture (Alestra)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1i) the Company (or such the Restricted Subsidiary Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person person assuming responsibility for, any liabilityliabilities, contingent or otherwise) at the time of the Asset Sale at least equal to the Fair Market Value (such Fair Market Value to be determined on the date a legally binding commitment for such Asset Sale was entered into) of the assets or Capital Interests issued or sold or otherwise disposed of; and
(ii) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash, cash or Eligible Cash Equivalents or readily marketable securitiesEquivalents. For purposes of this Section 4.113.7(a) (ii), each of the following shall will 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) sheet of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation assignment and assumption agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Company or such Restricted Subsidiary into cash, Cash Equivalents or readily marketable securities cash within 180 days after of their receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities cash received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Non-cash Consideration received by the Issuers Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value (determined on the date a legally binding commitment for the relevant Asset Sale (or, if later, for the payment of such item) was entered into), taken together with all other Designated Noncash Non-cash Consideration received pursuant to this clause (dc) that is at that time outstanding, not to exceed the greater of (ix) $4.5 billion 50.0 million and (iiy) 3.03.00% of Consolidated Total AssetsAssets at the time the applicable agreement was entered into, with the fair market value Fair Market Value of each item of Designated Noncash Non-cash Consideration being measured at the time received and each applicable agreement was entered into without giving effect to subsequent changes in value. Within 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) at its option:; and
(1d) to repay any Investment, stock, asset, property or otherwise retire debt under the Credit Facilities or any other Indebtedness capital expenditure of the Restricted Subsidiaries of the Company (other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary of the Company);
(2) kind referred to repay or otherwise retire unsecured Indebtedness of the Company, so long as a pro rata offer is made in accordance with the procedures set forth in the next paragraph to all holders of other unsecured Indebtedness issued by the Company; or
clause (3), (4) to invest in Productive Assets; provided that any such amount or (5) of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of the amount of any such Applicable Proceeds pursuant to thisSection 3.7(b).
Appears in 1 contract
Sources: Indenture (Lannett Co Inc)
Limitation on Asset Sales. The Company (a) Parent shall not, and shall not permit any of its the Restricted Subsidiaries to, consummate an any Asset Sale Sale, unless:
(1) the Company consideration received by Parent or such Restricted Subsidiary receives consideration at the time of such Asset Sale is at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Board of Directors of the Company; and
(32) at least 75% of the consideration from such Asset Salereceived, together with all other Asset Sales since the Issue Date calculated on a cumulative basis (including by way of relief fromtogether with other Asset Sales from the Issue Date, or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form consists of cash, Temporary Cash Equivalents Investments or readily marketable securities. Replacement Assets, or a combination of cash, Temporary Cash Investments or Replacement Assets; provided, however, with respect to the sale of one or more properties that up to 75% of the consideration may consist of Indebtedness of the purchaser of such properties so long as such Indebtedness is secured by a first priority Lien on the property or properties sold.
(b) For purposes of this Section 4.11, each of the following shall be deemed to be cash:
(a1) any liabilities of Parent or the Restricted Subsidiaries (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet) sheet of Parent and the Company or any Restricted Subsidiary thereof (Subsidiaries other than contingent liabilities and liabilities that are by their terms subordinated to the NotesNotes or any Guaranty) that are assumed by the transferee of any such assets pursuant to a customary novation an agreement that releases the Company Parent or any such Restricted Subsidiary from further liabilityliability with respect to such liabilities or that are assumed by contract or operation of law;
(b2) any securities, notes or other obligations received by the Company Parent or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof Parent or such Restricted Subsidiary into cash, cash or Temporary Cash Equivalents or readily marketable securities Investments within 180 days after receipt thereof (to the extent of the cash, cash or Temporary Cash Equivalents or readily marketable securities Investments received in that conversion);
(c) Productive Assets; and
(d3) any Designated Noncash Non-Cash Consideration received by the Issuers Parent or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Non-Cash Consideration received pursuant to this clause (d3) that is at that the time outstanding, not to exceed the greater of (ix) $4.5 billion 100,000,000 and (iiy) 3.02.0% of the Issuers’ Adjusted Total AssetsAssets at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Noncash Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value. In addition, any Asset Sale arising from any sale, transfer or other disposition of an Investment in a joint venture to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture or similar agreements need not comply with clauses (1) and (2) of Section 4.11(a) to the extent the Net Cash Proceeds received in such transaction shall be applied in accordance with the provisions of this Section 4.11.
(c) Within 450 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company Parent or a any such Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Cash Proceeds”) at its option:
(1) to repay prepay, repay, redeem or otherwise retire debt under the Credit Facilities or any other purchase Pari Passu Indebtedness of the Restricted Subsidiaries of the Company Issuers or a Subsidiary Guarantor that is Secured Indebtedness (in each case other than Indebtedness represented solely by a guarantee of a Restricted Subsidiary owed to the Issuers or an Affiliate of the CompanyIssuers);
(2) to repay make an Investment in (provided such Investment is in the form of Capital Stock), or to acquire all or substantially all of the assets of, a Person engaged in a Permitted Business if such Person is, or will become as a result thereof, a Restricted Subsidiary;
(3) to prepay, repay, redeem or purchase Pari Passu Indebtedness of Parent, an Issuer or of any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor; provided, however, that if Parent, the Issuers or a Subsidiary Guarantor shall so prepay, repay, redeem or purchase any such Pari Passu Indebtedness, the Issuers shall equally and ratably reduce obligations under the Notes if the Notes are then prepayable or, if the Notes may not then be prepaid, the Issuers shall make an offer (in accordance with the procedures set forth below) with the ratable proceeds to all Holders to purchase their Notes at 100% of the principal amount thereof, plus accrued but unpaid interest, if any, thereon, up to the principal amount of Notes that would otherwise be prepaid;
(4) to fund all or a portion of an optional redemption of the Notes pursuant to Section 5 of the Notes;
(5) to make a capital expenditure;
(6) to acquire Replacement Assets to be used or that are useful in a Permitted Business; or
(7) any combination of the foregoing; provided that the Issuers shall be deemed to have complied with the provisions described in clauses (2), (5) and (6) of this paragraph if and to the extent that, within 365 days after the Asset Sale that generated the Net Cash Proceeds, Parent or any of the Restricted Subsidiaries has entered into and not abandoned or rejected a binding agreement to acquire the assets or Capital Stock of a Permitted Business, acquire Replacement Assets or make a capital expenditure in compliance with the provisions described in clauses (2), (5) and (6) of this paragraph (each an “Acceptable Commitment”), and that Acceptable Commitment (or a replacement commitment should the Acceptable Commitment be subsequently cancelled or terminated for any reason) is thereafter completed within 180 days after the end of such 365-day period. Pending the final application of any such Net Cash Proceeds, the Issuers may temporarily reduce the revolving Indebtedness under any Credit Facility or otherwise retire unsecured Indebtedness invest such Net Cash Proceeds in any manner that is not prohibited by this Indenture. The amount of such excess Net Cash Proceeds required to be applied (or to be committed to be applied) during such 365-day period as set forth in this paragraph (c) and not so applied by the end of such period shall constitute “Excess Proceeds.”
(d) When the aggregate amount of Excess Proceeds exceeds $50,000,000, the Issuers shall make an offer to all holders of the CompanyNotes and, so long as if required by the terms of any Indebtedness that is Pari Passu Indebtedness, to the holders of such Pari Passu Indebtedness on a pro rata basis (an “Asset Sale Offer”), to purchase the maximum aggregate principal amount of the Notes and such Pari Passu Indebtedness that is in an amount equal to at least $2,000, that may be purchased out of the Excess Proceeds at an offer is made price in cash in an amount equal to 100.0% of the principal amount thereof (or accreted value thereof, if less), plus accrued and unpaid interest, if any, to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Indenture. The Issuers will commence an Asset Sale Offer with respect to Excess Proceeds within 20 Business Days after the next paragraph date that Excess Proceeds exceed $50,000,000 by delivering the notice required pursuant to all holders the terms of other unsecured Indebtedness issued this Indenture, with a copy to the Trustee. The Issuers may satisfy the foregoing obligations with respect to any Excess Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Excess Proceeds prior to the Company; orexpiration of the relevant 365 days or with respect to Excess Proceeds of $50,000,000 or less.
(3e) To the extent that the aggregate amount of Notes and such Pari Passu Indebtedness tendered pursuant to invest in Productive Assets; provided that an Asset Sale Offer is less than the Excess Proceeds, Parent and the Restricted Subsidiaries may use any remaining Excess Proceeds for any purpose not prohibited by this Indenture. If the aggregate principal amount of Notes or the Pari Passu Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and the Issuers shall select such Pari Passu Indebtedness to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such Pari Passu Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds that resulted in the Asset Sale Offer shall be reset to zero. Parent may satisfy the foregoing obligation with respect to any Net Cash Proceeds which prior to the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days expiration of the applicable relevant 365 day period (as such period may be extended in accordance with this Indenture). Nothing in this paragraph shall preclude the Issuers from making an Asset Sale may be invested in Productive Assets within two years Offer even if the amount of such Excess Proceeds not previously subject to an Asset Sale; provided that Sale Offer pursuant to this Section 4.11 covenant totals less than $25,000,000.
(1f) pending Pending the final application of the amount of any such Applicable Net Cash Proceeds pursuant to thisthis Section 4.11, the holder of such Net Cash Proceeds may apply such Net Cash Proceeds temporarily to reduce Indebtedness outstanding under a revolving Indebtedness under any Credit Facility or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture.
(g) The Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuers will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 1 contract
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an any Asset Sale unless:
(1) the Company or such Restricted Subsidiary any of its Subsidiaries, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value (as determined at the time of contractually agreeing to such Asset Sale) of the Capital Stock, assets or Equity Interests issued or property sold or otherwise disposed of;of pursuant to such Asset Sale; and
(2) such fair market value is determined by except in the Board case of Directors of the Company; and
(3) a Permitted Asset Swap, at least 7575.0% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way of relief from, or by any other Person assuming responsibility for, any liability, contingent or otherwise) Sale received by the Company or such Restricted Subsidiary Subsidiary, as the case may be, is in the form of cashcash or Cash Equivalents; provided, Cash Equivalents or readily marketable securities. For purposes of this Section 4.11however, each to the extent that the assets sold in such Asset Sale were part of the following Collateral, the assets received as non-cash consideration shall not be deemed Excluded Assets and are required to be cash:pledged as Collateral pursuant to the Security Documents reasonably promptly after receipt by the Company or a Subsidiary thereof.
(ab) Upon the occurrence of an Asset Sale Prepayment Event, the Company shall apply 80% of such Net Cash Proceeds to make a mandatory redemption in accordance with Section 3.02(d). The remaining 20%, if applicable, of such Net Cash Proceeds (or any liabilities portion thereof, the “Reinvestment Amount”) must be applied pursuant to Section 4.10(c) or (e), as shown on applicable.
(c) Within 180 days after the Company’s or such Restricted any Subsidiary’s most recent balance sheet) receipt of the Company or any Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);
(c) Productive Assets; and
(d) any Designated Noncash Consideration received by the Issuers 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) that is at that time outstanding, not to exceed the greater of (i) $4.5 billion and (ii) 3.0% of Total Assets, with the 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. Within 450 days after the receipt of any Net Proceeds from an Asset SaleReinvestment Amount, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Proceeds (the “Applicable Proceeds”) Subsidiary, at its option, may apply such Reinvestment Amount as follows:
(1) to repay make an investment in, purchase or otherwise retire debt under the Credit Facilities acquire any one or any other Indebtedness of the Restricted Subsidiaries of the Company more businesses, assets (other than Indebtedness represented solely by working capital assets), properties or capital expenditures, in each case used or useful in a guarantee Similar Business or to make payments (including without limitation prepayments and progress payments) in connection with such investment, purchase or other acquisition; provided, that if such investment, purchase or acquisition is in the form of the acquisition of Capital Stock of a Restricted Person, such investment, purchase or acquisition results in such Person becoming a Subsidiary; provided, further, that the assets acquired with the Reinvestment Amount shall not be Excluded Assets and are required to be pledged as Collateral pursuant to the Security Documents reasonably promptly after receipt by the Company or a Subsidiary of the Company)thereof;
(2) to repay make an investment in, purchase or otherwise retire unsecured Indebtedness of acquire any one or more businesses, assets (other than working capital assets) or properties that replace the Companybusinesses, so long as a pro rata offer is made in accordance assets and/or properties that are the subject to such Asset Sale; provided, that the assets acquired with the procedures set forth in Reinvestment Amount shall not be Excluded Assets and are required to be pledged as Collateral pursuant to the next paragraph to all holders of other unsecured Indebtedness issued Security Documents reasonably promptly after receipt by the CompanyCompany or a Subsidiary thereof; or
(3) any combination of the foregoing, provided, that the Company and its Subsidiaries will be deemed to invest have complied with the provisions described in Productive Assets; provided that clause (1) or (2) of this Section 4.10(c) if and to the extent that, within 180 days after the Company’s or any Subsidiary’s receipt of such amount of Net Proceeds which Reinvestment Amount, the Company or a Restricted Subsidiary thereof Subsidiary, as applicable, has committed entered into and not abandoned or rejected a binding agreement to invest make an investment, purchase or other acquisition in Productive Assets compliance with the provision described in clause (4) or (5) of this Section 4.10(c), and that investment, purchase or other acquisition is thereafter completed within 450 180 days after the end of such 180-day period.
(d) Notwithstanding the foregoing, to the extent that repatriation to the United States of any or all of the Net Cash Proceeds of any Asset Sales by a Foreign Subsidiary (x) is prohibited or delayed by applicable Asset Sale may local law or (y) would have a material adverse tax consequence (taking into account any foreign tax credit or other net benefit actually realized in connection with such repatriation that would not otherwise be invested realized), as determined by the Company in Productive Assets within two years its sole discretion, the portion of such Asset SaleNet Cash Proceeds so affected will not be required to be applied in compliance with this covenant; provided that clause (1x) pending of this paragraph shall apply to such amounts so long, but only so long, as the applicable local law will not permit repatriation to the United States (the Company hereby agreeing to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation), and if such repatriation of any of such affected Net Cash Proceeds is permitted under the applicable local law and is not subject to clause (y) of this paragraph, then, an amount equal to such Net Cash Proceeds will be promptly applied (net of additional taxes that would be payable or reserved against as a result of repatriating such amounts) in compliance with this covenant. The time periods set forth in this covenant shall not start until such time as the Net Cash Proceeds may be repatriated (whether or not such repatriation actually occurs).
(e) Pending the final application of any such Reinvestment Amount, the Company and its Subsidiaries may temporarily reduce Indebtedness (including under a revolving credit facility) or otherwise invest or utilize such Reinvestment Amount in any manner not prohibited by this Indenture. Any amount of Reinvestment Amount from any Asset Sale that is not applied or invested as provided and within the time period set forth in Section 4.10(c) will be deemed to constitute “Excess Proceeds”. When the aggregate amount of Excess Proceeds exceeds $5 million, the Company shall be required to make a mandatory redemption in accordance with Section 3.02(d).
(f) The Company may satisfy the foregoing obligations with respect to any Reinvestment Amount from an Asset Sale by making an optional redemption with respect to such Reinvestment Amount prior to the time period that may be required by this Indenture with respect to all or a part of the available Reinvestment Amount in advance of being required to do so by this Indenture so long as such redemption complies with Section 3.01.
(g) Upon completion of any such redemption (whether pursuant to clause (e) or (f) above or any combination thereof), the amount of any such Applicable Excess Proceeds pursuant to thisshall be reset at zero.
Appears in 1 contract
Sources: Subscription Agreement (Virgin Galactic Holdings, Inc)
Limitation on Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an make any Asset Sale unlessunless the following conditions are met:
(1) the Company or such Restricted Subsidiary receives consideration at the time of such The Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;is for Fair Market Value.
(2) such fair market value is determined by the Board of Directors of the Company; and
(3) at At least 75% of the consideration from such Asset Sale, together with all other Asset Sales since the Issue Date on a cumulative basis (including by way consists of relief from, cash or by any other Person assuming responsibility for, any liability, contingent or otherwise) received by the Company or such Restricted Subsidiary is in the form of cash, Cash Equivalents or readily marketable securitiesreceived at closing. For purposes of this Section 4.11clause (2), each of the following shall be deemed to be cashcash or Cash Equivalents:
(ai) any liabilities the assumption by the purchaser of Debt or other obligations (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheetother than Subordinated Debt) of the Company or any a Restricted Subsidiary thereof (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary terms or a novation agreement that releases the Company or such Restricted Subsidiary from further liability;agreement,
(bii) instruments or securities (other than Cash Equivalents) received from the purchaser that are promptly, but in any securitiesevent within 90 days of the closing, notes or other obligations received converted by the Company or any such Restricted Subsidiary from such transferee that are converted by the recipient thereof into to cash, Cash Equivalents or readily marketable securities within 180 days after receipt thereof (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion);cash actually so received,
(ciii) Productive Assetsany stock or assets of the kind referred to in Section 4.13(3)(iii); and
(div) any Designated Noncash Consideration received by the Issuers Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market valueFair Market Value, taken together with all other Designated Noncash Consideration received pursuant to this clause (div) that is at that time outstanding, not to exceed the greater of (ia) $4.5 billion 50,000,000 and (iib) 3.02.50% of Total Assets, with the fair market value 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. .
(3) Within 450 365 days after the receipt of any the Net Cash Proceeds from an Asset Sale, the Company or a Restricted Subsidiary thereof may apply an amount equal to the Applicable Percentage of such Net Cash Proceeds (the “Applicable Proceeds”) at its option:may be used
(1i) to repay repay, prepay or otherwise retire debt under the Credit Facilities or any purchase (A) secured Debt and other Indebtedness of the Restricted Subsidiaries secured Obligations of the Company or a Guarantor or (other than Indebtedness represented solely by a guarantee B) Debt of a Restricted Subsidiary that is not a Guarantor, in each case, other than Disqualified Equity Interests, Debt of the CompanyCompany or any Restricted Subsidiary that is contractually subordinated to the Notes or any Note Guarantee or any intercompany Debt between or among the Company and any of its Restricted Subsidiaries);; and, if the Debt repaid is revolving credit Debt under a Credit Facility, to correspondingly reduce commitments with respect thereto,
(2ii) to repay (a) reduce the Obligations under the Notes as provided under Section 3.01, (b) repurchase, acquire, redeem, defease, discharge or otherwise retire unsecured Indebtedness in any manner the Notes (provided that the purchase price is at least 100% of the Companyprincipal amount (or, so long as a pro rata offer is made if issued with original issue discount, the accreted value) plus accrued interest) or (c) reduce Obligations under the Notes and any Obligations under any Debt ranking pari passu in accordance right of payment with the procedures set forth Notes (“pari passu Debt”) by making an Offer to Purchase the notes and any pari passu Debt in the next paragraph to all holders of other unsecured Indebtedness issued by the Companymanner described in clause (4) below; or
(3iii) to invest acquire all or substantially all of the assets of a Permitted Business, or a majority of the Voting Stock of another Person that thereupon becomes a Restricted Subsidiary engaged in Productive Assetsa Permitted Business, or to make capital expenditures or otherwise acquire long-term assets that are to be used in a Permitted Business; provided that, in the case of this clause (3)(iii), a binding commitment shall be treated as a permitted application of an amount equal to the Net Cash Proceeds from the date of such commitment so long as the Company or such other Restricted Subsidiary enters into such commitment with the good faith expectation that an amount equal to such Net Cash Proceeds will be applied to satisfy such commitment within 180 days after the end of such 365-day period; provided, further, that in the event any such commitment is later cancelled or terminated for any reason before an amount equal to the Net Cash Proceeds are applied in connection therewith, then an amount equal to such Net Cash Proceeds may then be used as described in clause (3)(i) on or prior to the expiration of such 180-day period; provided that any such amount of Net Proceeds which the Company or a Restricted Subsidiary thereof has committed to invest in Productive Assets within 450 days of the applicable Asset Sale may be invested in Productive Assets within two years of such Asset Sale; provided that (1) pending the final application of an amount equal to any such Net Cash Proceeds in accordance with clause (i), (ii) or (iii) above, the Company and its Restricted Subsidiaries may temporarily reduce Debt or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture.
(4) An amount equal to the Net Cash Proceeds of the Asset Sale not applied pursuant to clause (3) within 365 days of the Asset Sale (or such longer period in the proviso to clause (ii) thereof) constitutes “Excess Proceeds.” Excess Proceeds of less than $50,000,000 will be carried forward and accumulated. When accumulated Excess Proceeds equals or exceeds $50,000,000, the Company must, within 30 days, make an Offer to Purchase to all Holders and all holders of other Debt that is pari passu with the Notes and is also unsecured 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 and unsecured Debt that may be purchased out of the Excess Proceeds in a principal amount equal to accumulated Excess Proceeds, on a pro rata basis, rounded down to the nearest $1,000. In connection with any such Applicable Proceeds Offer to Purchase Notes under this Section, the purchase price for the Notes will be 100% of the principal amount thereof plus accrued interest to, but not including, the date of purchase. If the Offer to Purchase is for less than all of the outstanding Notes and Notes in an aggregate principal amount in excess of the purchase amount are tendered and not withdrawn pursuant to thisthe offer, the Company will purchase Notes having an aggregate principal amount equal to the purchase amount on a pro rata basis, with adjustments so that only Notes in multiples of $1,000 principal amount will be purchased. Upon completion of the Offer to Purchase, Excess Proceeds will be reset at zero, and any Excess Proceeds remaining after consummation of the Offer to Purchase may be used for any purpose not otherwise prohibited by this Indenture.
Appears in 1 contract
Sources: Indenture (Aci Worldwide, Inc.)