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 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); (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 or Cash Equivalents and shall be received at the time of such disposition; provided that, for purposes of this clause (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and (3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either: (a) to permanently reduce Indebtedness under the Credit Agreement 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; (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”); or (c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b). (b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 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 such Pari Passu Indebtedness) (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 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 4.10. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10. (c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that: (1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and (2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state: (1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment; (2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date); (3) that any Note not tendered will continue to accrue interest if interest is then accruing; (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 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 Net Proceeds Offer Payment Date; (6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and (7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this
Appears in 1 contract
Sources: Indenture (Manitowoc Co Inc)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, consummate an directly or indirectly, make any Asset Sale unless:
Sale, unless (1i) the Company or the applicable such Restricted 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 sold or otherwise disposed of and (as determined in good faith by the Company’s Board of Directors);
(2ii) at least 7585% of the such consideration received by the Company or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form consists of (A) cash or Cash Equivalents and shall be received at the time of such disposition; provided thatEquivalents, for purposes of this clause (2B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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 to be used in the business of the Company and its Restricted Subsidiaries as existing on and/or (C) Equity Interests in any Person which thereby becomes a Wholly-Owned Restricted Subsidiary of the Issue Date or in businesses reasonably related thereto Company. The amount of any (“Replacement Assets”); or
(ci) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) On the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors Indebtedness of the Company or of such any Restricted Subsidiary determines not to apply of the Net Cash Proceeds relating to Company that is actually assumed by the transferee in such Asset Sale as set forth in clauses (3)(a), (3)(b) and (3)(c) from which the Company and the Restricted Subsidiaries of Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this paragraph (each, a “Net Proceeds Offer Amount”) Company are fully released 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 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 such Pari Passu Indebtedness) (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 deemed to be purchased, plus accrued and unpaid interest thereon, if any, to cash for purposes of determining the date percentage of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any of its Restricted Subsidiary Subsidiaries and (ii) notes or other similar obligations received by the Company or any of its Restricted Subsidiaries from such transferee that are immediately converted, sold or exchanged (or are converted, sold or exchanged within thirty days of the Company, as related Asset Sale) by the case may be, in connection with Company or any Asset Sale is converted of its Restricted Subsidiaries 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 be cash, in an Asset Sale hereunder and the Net Cash 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 amount equal to the net cash proceeds realized upon such conversion, sale or in excess exchange, for purposes of $10.0 million resulting from one determining the percentage of cash consideration received by the Company or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess any of $10.0 million, shall be applied as required pursuant to this Section 4.10(b))its Restricted Subsidiaries. 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 Article Five and as a Change of Controlresult thereof the Company is no longer an obligor on the Securities, 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 4.10 4.06, and shall comply with the provisions of this Section 4.10 4.06 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value Fair Market Value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
4.06. The Company or such Restricted Subsidiary, as the case may be, may (ci) Notwithstanding Sections 4.10(aapply the Net Cash Proceeds of any Asset Sale within 180 days of receipt thereof to repay Specified Senior Indebtedness of the Company or such Restricted Subsidiary and permanently reduce any related commitment, or (ii) commit in writing to acquire, construct or improve, or acquire, construct or improve, properties and (b), assets to be used in the business of the Company and its Restricted Subsidiaries and so apply such Net Cash Proceeds within 180 days after the receipt thereof; PROVIDED, that if after the date hereof the Company shall enter into an agreement with any third Person providing that upon the receipt of Net Cash Proceeds from any Asset Sale such Net Cash Proceeds will be permitted used to consummate an repay Indebtedness of such Person provision shall be made in such agreement requiring that such repayment shall be made ratably (based on outstanding principal amount then outstanding) between such Person and the Holders. To the extent all or part of the Net Cash Proceeds of any Asset Sale without complying with are not applied within 180 days of such Sections Asset Sale as described in clause (i) or (ii) of the immediately preceding paragraph (such Net Cash Proceeds, the "UNUTILIZED NET CASH PROCEEDS"), the Company shall, within 20 days after such 180th day, make an Offer to Purchase all outstanding Securities up to a maximum principal amount (expressed as a multiple of $1,000) of Securities equal to such Unutilized Net Cash Proceeds, at a purchase price in cash equal to 100% of the principal amount thereof, plus accrued and unpaid interest thereon, if any, to the Purchase Date; PROVIDED, HOWEVER, that the Offer to Purchase may be deferred until there are aggregate Unutilized Net Cash Proceeds equal to or in excess of $40 million, at which time the entire amount of such Unutilized Net Cash Proceeds, and not just the amount in excess of $40 million, shall be applied as required pursuant to this paragraph. With respect to any Offer to Purchase effected pursuant to this Section 4.06, among the Securities, to the extent that:
(1) at least 75% the aggregate principal amount of Securities tendered pursuant to such Offer to Purchase exceeds the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Unutilized Net Cash Proceeds subject to be applied to the provisions repurchase thereof, such Securities shall be purchased PRO RATA based on the aggregate principal amount of Sections 4.10(a) such Securities tendered by each Holder. To the extent the Unutilized Net Cash Proceeds exceed the aggregate amount of Securities tendered by the Holders of the Securities pursuant to such Offer to Purchase, the Company may retain and (b). The provisions utilize any portion of the Unutilized Net Cash Proceeds not applied to repurchase the Securities for any purpose consistent with the other terms of this Section 4.10 shall not apply Indenture. In the event that the Company makes an Offer to transactions undertaken pursuant to an Inversion Transaction; provided that (i) Purchase the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion TransactionSecurities, the Company shall apply 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, and any violation of the provisions of this Indenture relating to S&P and ▇▇▇▇▇’▇ such Offer to have its debt rating and outlook updated and Purchase occurring as a result of such updated debt rating and outlook compliance shall not be deemed a Default or an Event of Default. Each Holder shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders entitled to tender Notes all or any portion of the Securities owned by such Holder pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (Purchase, subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) requirement that any Note not portion of a Security tendered will continue to accrue interest if interest is then accruing;
(4) that, unless the Company defaults must be tendered 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 the Note, with the form entitled “Option an integral multiple 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the $1,000 principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election subject to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, any proration among tendering Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisdescribed above.
Appears in 1 contract
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an engage in any Asset Sale unless:
Sales unless (1i) the Company or the applicable such Restricted 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 Properties sold or otherwise disposed of pursuant to the Asset Sale, (as determined in good faith by the Company’s Board of Directors);
(2ii) at least 7580% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from in respect of such Asset Sale shall be in the form consists of cash or Cash Equivalents and shall be received at (iii) the time of Company delivers to the Trustee an Officers' Certificate certifying that such disposition; provided that, for purposes Asset Sale complies with clauses (i) and (ii) of this clause Section 10.15(a). The amount (2without duplication) of any securities, notes or Indebtedness (other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by than Subordinated Indebtedness) of the Company or such Restricted Subsidiary into cash or Cash Equivalents (to that is expressly assumed by the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to transferee in such Asset Sale within 365 days of receipt thereof either:
(a) and with respect to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this paragraph (each, a “Net Proceeds Offer Amount”) shall be applied by which the Company or such Restricted Subsidiary to make an offer to purchase (Subsidiary, as the “Net Proceeds Offer”) to all Holders andcase may be, to the extent required is unconditionally released by the terms holder of any Pari Passu such Indebtedness, shall be deemed to all holders be cash or Cash Equivalents for purposes of clause (ii) and shall also be deemed to constitute a repayment of, and a permanent reduction in, the amount 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 such Pari Passu Indebtedness) (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% for purposes 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 following paragraph (b). 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 Available Proceeds thereof shall be applied in accordance with this Section 4.1010.15. The A transfer of assets by the Company may defer to a Restricted Subsidiary or by a Subsidiary to the Net Proceeds Offer until there Company or to a Restricted Subsidiary will not be deemed to be an Asset Sale and a transfer of assets that constitutes a Restricted Investment and that is permitted under Section 10.10 will not be deemed to be an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b))Sale. 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 ControlArticle VIII, 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 4.10 10.15, and shall comply with the provisions of this Section 4.10 10.15 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value Fair Market Value of such properties and assets Properties of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Available Proceeds for purposes of this Section 4.1010.15.
(b) If the Company or any Restricted Subsidiary engages in an Asset Sale, the Company or any Restricted Subsidiary may either, no later than 270 days after such Asset Sale, (i) apply all or any of the Net Available Proceeds therefrom to repay Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary, provided, in each case, that the related loan commitment (if any) is thereby permanently reduced by the amount of such Indebtedness so repaid, or (ii) invest all or any part of the Net Available Proceeds thereof in Properties that replace the Properties that were the subject of such Asset Sale or in other Properties that will be used in the business of the Company and its Restricted Subsidiaries. The amount of such Net Available Proceeds not applied or invested as provided in this paragraph shall constitute "Excess Proceeds".
(c) Notwithstanding Sections 4.10(a) and When the aggregate amount of Excess Proceeds equals or exceeds $5,000,000 (bthe "Trigger Date"), the Company and its Restricted Subsidiaries will be permitted shall make an offer to consummate purchase, from all Holders of the Securities, an Asset Sale without complying with aggregate principal amount of Securities equal to such Sections to the extent thatExcess Proceeds as follows:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) Not later than the Supplemental Indenture is executed and in effect concurrently with 30th date following the consummation of such Inversion Transaction; (ii) immediately following such Inversion TransactionTrigger Date, the Company shall apply give to S&P the Trustee in the manner provided in Section 15.4 hereof and ▇▇▇▇▇’▇ each Holder of the Securities in the manner provided in Section 15.5 hereof, a notice (a "Purchase Notice") offering to have its debt rating and outlook updated and purchase (a "Net Proceeds Offer") from all Holders of the Securities the maximum principal amount (expressed as a multiple of $1,000) of Securities that may be purchased out of an amount (the "Payment Amount") equal to such updated debt rating and outlook Excess Proceeds.
(ii) The offer price for the Securities shall be no less favorable payable in cash in an amount equal to 100% of the principal amount of the Securities tendered pursuant to a Net Proceeds Offer, plus accrued and unpaid interest, if any, and the Liquidated Damages, if any, to the Company than immediately prior to date such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to is consummated (the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date"Offered Price"), with a copy to the Trustee, and shall comply in accordance with the procedures set forth in paragraph (d) of this IndentureSection. The notice to To the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes extent that the aggregate Offered Price of the Securities tendered pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the a Net Proceeds Offer is being made pursuant to this Section 4.10 and that less than the Payment Amount relating thereto (such shortfall constituting a "Net Proceeds Deficiency"), the Company may use such Net Proceeds Deficiency, or a portion thereof, for general corporate purposes, subject to the provisions limitations of Section 10.10 hereof.
(iii) all Notes If the aggregate Offered Price of Securities validly tendered and not withdrawn by Holders thereof exceeds the Payment Amount, Securities to be purchased will be accepted for payment;
(2) selected on a pro rata basis by the purchase price (including Trustee based on the aggregate principal amount of Securities so tendered. Upon completion of a Net Proceeds Offer, the amount of accrued interestExcess Proceeds shall be zero.
(iv) and the The Purchase Notice shall set forth a purchase date (the "Net Proceeds Payment Date"), which shall be on a Business Day no earlier than 30 days nor later than 60 days from the Trigger Date. The Purchase Notice shall also state (i) that a Trigger Date with respect to one or more Asset Sales has occurred and that such Holder has the right to require the Company to repurchase such Holder's Securities at the Offered Price, subject to the limitations described in the foregoing paragraph (iii), (ii) any information regarding such Net Proceeds Offer Payment Date);
required to be furnished under the Exchange Act and any other securities laws and regulations thereunder, (3iii) that any Note Security, or portion thereof, not tendered or accepted for payment will continue to accrue interest if interest is then accruing;
interest, (4iv) that, unless the Company defaults in making depositing money with the Paying Agent in accordance with the last paragraph of clause (d) of this Section 10.15, or payment thereforis otherwise prevented, any Note Security, or portion thereof, accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Date;, and (v) the instructions a Holder must follow in order to have his Securities repurchased in accordance with paragraph (d) of this Section.
(5d) that Holders electing to have a Note Securities purchased pursuant to a Net Proceeds Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, such Securities to the Paying Agent at the address specified in the notice prior to the close of business on the third business day Purchase Notice at least five Business Days 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 5:00 p.m., New York City time, on the second three Business Day preceding Days prior to the Net Proceeds Offer Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the certificate number(s) (in the case of Physical Securities) and principal amount of the Notes the Holder Securities delivered for purchase by the Holder as to which his election is to be withdrawn and a statement that such Holder is withdrawing his election to have such Note Securities purchased; and
(7) . Holders whose Securities are purchased only in part will be issued new Securities of like tenor and equal in principal amount to the circumstances and relevant facts regarding such Net Proceeds Offerunpurchased portion of the Securities surrendered. Upon receiving notice of On or prior to the Net Proceeds OfferPayment Date, Holders may elect the Company shall (i) accept for payment Securities or portions thereof validly tendered pursuant to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the a Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate principal amount equal to the Payment Amount or such lesser amount of Securities as has been tendered, (ii) irrevocably deposit with the Paying Agent money sufficient to pay the purchase price of all Securities or portions thereof so tendered in an aggregate principal amount equal to the Payment Amount or such lesser amount and (iii) deliver or cause to be delivered to the Trustee the Securities so accepted. The Paying Agent shall promptly mail or deliver to Holders of the Securities so accepted payment in an amount equal to the purchase price, and the Company shall execute and the Trustee shall authenticate and mail or make available for delivery to such Holders a new Security of like tenor and equal in principal amount to any unpurchased portion of the Security which any such Holder did not surrender for purchase. Any Securities not so accepted will be promptly mailed or delivered to the Holder thereof. The Company shall announce the results of a Net Proceeds Offer Amount on or as soon as practicable after the Net Proceeds Payment Date. For purposes of this Section 10.15, the Trustee will act as the Paying Agent.
(if any). A e) The Company shall not permit any Restricted Subsidiary to enter into or suffer to exist any agreement that would place any restriction of any kind (other than pursuant to law or regulation) on the ability of the Company to make a Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by lawfollowing any Asset Sale. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder thereunder, if applicable, in the event that an Asset Sale occurs and the Company is required to the extent such laws and regulations are applicable purchase Securities as described 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 thisthis Section 10.15.
Appears in 1 contract
Sources: Indenture (Willcox & Gibbs Inc /De)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless:
unless (1i) the Company or the applicable such Restricted 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 (which, if it exceeds $1 million, shall be determined by, and set forth in, a resolution of the Board of Directors of the Company and described in an Officers' Certificate of the Company delivered to the Trustee) of the assets sold or otherwise (including, if appropriate, Equity Interests) disposed of or issued, as appropriate, and (as determined in good faith by the Company’s Board of Directors);
(2ii) at least 75% of the consideration therefor received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash or Cash Equivalents Equivalents. For purposes of this Section (and shall be received at the time of such disposition; provided that, not for purposes of any other provision of this clause Indenture), the term "cash" shall be deemed to include (2i) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from as consideration as part of such transferee Asset Sale that are immediately converted by the Company or such Restricted Subsidiary into actual cash or Cash Equivalents (to the extent of the actual cash so received), and (ii) any liabilities of the Company or Cash Equivalents receivedsuch Restricted Subsidiary (as shown on the most recent balance sheet of the Company or such Restricted Subsidiary) within 30 that (A) are assumed by the transferee of the assets which are the subject of such Asset Sale as consideration therefor in a transaction the result of which is that the Company and all of its Subsidiaries are released from all liability for such assumed liability, (B) are not by their terms subordinated in right of payment to the Notes, (C) are not owed to the Company or any Subsidiary of the Company, and (D) constitute short-term liabilities (as determined in accordance with GAAP).
(b) Within 360 days after the receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of any Net Proceeds from an Asset Sale, the Company shall may apply, directly or cause indirectly, such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Bank Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 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 such Pari Passu Indebtedness) (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 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 4.10. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thiscorrespondingly reduce commitments with
Appears in 1 contract
Sources: Indenture (Highwaymaster Corp)
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 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 's or the Subsidiary's Board of DirectorsDirectors or other governing body, as applicable);
(2ii) 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 or Cash Equivalents and shall be received at (provided that the time amount of any liabilities (as shown on the Company's or such disposition; provided that, for purposes Subsidiary's most recent balance sheet) of this clause (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee (other than liabilities that are converted by their terms subordinated to the Notes) that are assumed by the Company or transferee of any such Restricted Subsidiary into assets shall be deemed to be cash or Cash Equivalents (to for the extent purposes of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”this provision); and
(3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale due and owing to the Company or such Subsidiary (but, with respect to any such Subsidiary, only the Company's proportionate interest in any non-Wholly Owned Subsidiary) within 365 days of receipt thereof either:
(aA) to permanently reduce Indebtedness under prepay Senior Debt in accordance with the terms of the Credit Agreement and, in the case of any such Indebtedness under any revolving credit facility, and effect a permanent reduction in the availability under such revolving credit facility;Credit Agreement,
(bB) to the extent permitted by the Credit Agreement, 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 described in businesses reasonably related thereto Section 4.19 (“"Replacement Assets”"); , or
(cC) to a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) On . Subject to the last sentence of this paragraph, 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 clause (3)(aiii)(A), (3)(biii)(B) and or (3)(ciii)(C) of Section 4.10(a) the next preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, 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 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to 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, but installments of interest, the maturity of which is on or prior to the Proceeds Purchase Date, shall be payable to Holders of record at the close of business on the relevant record dates referred to in Section 2.12; 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 4.10covenant. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million 1,000,000 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 $10.0 million1,000,000, shall be applied as required pursuant to this Section 4.10(bthe preceding paragraph)). In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this
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:
unless (1a) 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 DirectorsDirectors of the Company);
, (2b) 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 or Cash Equivalents and shall be is received at the time of such disposition; provided thatprovided, however, that this condition shall not apply 71 -62- to a transaction whereby the Company or any Restricted Subsidiary effects an Asset Sale by the exchange of assets or property for Productive Assets or to the sale or other disposition of all or any portion of the Company's East Mill assets located in Antioch, California, provided, further, that the amount of (A) any liabilities of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes) that are assumed by the transferee of any such assets shall be deemed to be cash for purposes of this clause provision and (2B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will shall be considered “cash” or “Cash Equivalents”; and
deemed to be cash for purposes of this provision, and (3c) upon the consummation of an Asset Sale, the Company shall (i) apply, or cause such Restricted Subsidiary to apply, the such Net Cash Proceeds relating to of such Asset Sale within 365 270 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(b) to make an investment in properties and assets that replace the properties and assets that were the subject consummation of such Asset Sale (A) to prepay Senior Debt or in properties and assets (including Capital StockB) that will be used in to the business extent the holders of the Company and its Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably related thereto (“Replacement Assets”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) On the 366th day after Senior Debt tender an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or amount of such Restricted Subsidiary determines not to apply indebtedness less than the available Net Cash Proceeds relating offered to such Asset Sale as set forth in clauses (3)(a)holders, (3)(b) and (3)(c) of Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 andNotes, 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 such Pari Passu Indebtedness) (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, thereon to the date of purchasepurchase pursuant to an offer to purchase made by the Company as set forth below (a "Net Proceeds Offer"), or (ii)(A) commit, or cause such Restricted Subsidiary to commit (such commitments to include amounts anticipated to be expended pursuant to the Company's capital investment plan (x) as adopted by the Board of Directors of the Company and (y) evidenced by the filing of an Officers' Certificate with the Trustee stating that the total amount of the Net Cash Proceeds of such Asset Sale is less than the aggregate amount contemplated to be expended pursuant to such capital investment plan within 24 months of the consummation of such Asset Sale) within 270 days of the consummation of such Asset Sale, to apply the Net Cash Proceeds of such Asset Sale to reinvest in Productive Assets and (B) apply, or cause such Restricted Subsidiary to apply, pursuant to such commitment (which includes amounts actually expended under the capital investment plan authorized by the Board of Directors of the Company), such Net Cash Proceeds of such Asset Sale within 24 months of the 72 -63- consummation of such Asset Sale; provided that if any commitment under this clause (ii) is terminated or rescinded after the 225th day after the consummation of such Asset Sale, the Company or such Restricted Subsidiary, as the case may be, shall have 45 days after such termination or rescission to (1) apply such Net Cash Proceeds pursuant to clause (c)(i) above (a "Reapplication Determination") or (2) to commit, or cause such Restricted Subsidiary to commit, to apply the Net Cash Proceeds of such Asset Sale to reinvest in Productive Assets; provided that in any such case, such proceeds must be applied pursuant to clause (c)(i) above or such commitment, as the case may be, no later than 24 months after the consummation of such Asset Sale or (iii) any combination of the foregoing; provided, howeverfurther, 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)cash, 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. The clause (c) above; and provided, further, that the Company may defer the making a Net Proceeds Offer until there is an the aggregate unutilized Net Cash Proceeds from Asset Sales to be applied equals or exceeds $10 million. Pending the final application of any such Net Cash Proceeds the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any.
(b) Notice of a Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.16 shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company mailed or its Restricted Subsidiaries deemed cause to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b)mailed, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by first class mail, by the Company within 270 days, or any of its Restricted Subsidiaries in connection with any so long as the Senior Notes and the 9 3/4% Notes are outstanding, 330 days, after the relevant Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to all Holders at their last registered addresses as of a date within 15 days of the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation mailing of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Datenotice, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice Offer and shall statestate the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 4.16 and that (subject to the provisions hereof) all Notes tendered will be 73 -64- accepted for payment; provided, however, that if the aggregate principal amount of Notes tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of the Net Proceeds Offer, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 or multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be no earlier than 30 days nor later than 45 days from the Net date such notice is mailed, other than as may be required by law) (the "Proceeds Offer Payment Purchase Date");
(3) that any Note not tendered will continue to accrue interest if interest is then accruinginterest;
(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 or accrete interest after the Net Proceeds Offer Payment Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to a Net Proceeds Offer will be required to surrender the Note, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third business day Business Day prior to the Proceeds Purchase Date;
(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. On or before the Proceeds Purchase Date, the Company shall (i) accept for payment Notes or portions thereof tendered pursuant to the Net Proceeds Offer Payment Date;
that are to be purchased in accordance with item (6b)(1) that Holders will be entitled to withdraw their election if above, (ii) deposit with the Paying Agent receives, not later than 5:00 p.m., New York City time, on U.S. Legal Tender sufficient to pay the second Business Day preceding purchase price of all Notes to be purchased and (iii) deliver to the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of Trustee Notes so accepted together with an Officers' Certificate stating the Notes or portions thereof being purchased by the Holder delivered for purchase and a statement that such Holder is withdrawing his election Company. The Paying Agent shall promptly mail to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice Holders of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness so accepted payment in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any)purchase price. A For purposes of this Section 4.16, the Trustee shall act as the Paying Agent. Any amounts remaining after the purchase of Notes pursuant to a Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required returned by lawthe Trustee to the Company. 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis Section 4.16, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.16 by virtue thereof.
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, directly or indirectly, consummate an any Asset Sale unless:
(1) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets sold or otherwise disposed of (as determined in good faith by the Company’s Board of Directors)disposed;
(2) at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents and shall be received at the time of such disposition; provided that, for purposes that the amount of this clause any liabilities (2as shown on the most recent applicable balance sheet) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by of the Company or such Restricted Subsidiary into cash or Cash Equivalents (other than liabilities that are by their terms subordinated to the extent Interim Notes) that are assumed by the transferee of any such assets shall be deemed to be cash for purposes of this provision if the cash documents governing such liabilities provide that there is no further recourse to the Company or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”any of its Subsidiaries with respect to such liabilities; and
(3) upon the consummation all of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt in respect thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this paragraph (each, a “Net Proceeds Offer Amount”) shall be are 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 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 such Pari Passu Indebtedness) (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 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 Company 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 $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)2.4A(ii)(a). 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 6.5 that does not constitute a Change of Control, the successor corporation entity shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 6.9, and shall comply with the provisions of this 6.9 and Section 4.10 2.4A(ii)(a) with respect to such deemed sale as if it were constituted an Asset Sale. In addition, the fair market value 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 4.106.9 and Section 2.4A(ii)(a).
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this
Appears in 1 contract
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate in the ordinary course of business or otherwise, sell, lease, convey, transfer or otherwise dispose of any of the Company's, or of any such Subsidiary's, assets (including Capital Stock and warrants, options or other rights to acquire Capital Stock) (an "Asset Sale"), other than pursuant to a Permitted Asset Sale unless:
or a Limited Permitted Asset Sale, unless (1A) the Company receives, or the applicable Restricted Subsidiaryrelevant Subsidiary receives, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (including as to the value of the assets sold or otherwise disposed of (all non-cash consideration), as determined in good faith by the Company’s Board of Directors);
(2) at least 75% Directors of the consideration received by Company, of the assets subject to such Asset Sale, and (B) within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted relevant Subsidiary, as the case may be, from shall apply all such Asset Sale shall be in the form of cash or Cash Equivalents and shall be received at the time of such disposition; provided that, for purposes of this clause (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof eitherto:
(a) to permanently reduce Indebtedness under the Credit Agreement and, in the case of any such Indebtedness repay or prepay indebtedness under any revolving credit facility, effect Credit Facility secured by a permanent reduction in lien on assets of the availability under such revolving credit facilityCompany or any Subsidiary;
(b) to make an investment acquire all or substantially all of the assets of, or any Capital Stock of, a person primarily engaged in properties and assets a Permitted Business; provided, 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 case of the acquisition of Capital Stock of any Person, such Person is or becomes a Subsidiary of the Company and its Restricted will be subject to all restrictions described in this Third Supplemental Indenture as applying to Subsidiaries as of the Company existing on the Issue Date or in businesses reasonably related thereto (“Replacement Assets”); orDate;
(c) make a capital expenditure;
(d) acquire other assets that are not classified as current assets under IFRS and that are used or useful in a Permitted Business (including, without limitation, Vessels and Related Assets);
(e) repay unsecured senior indebtedness of the Company or any Subsidiary (including any redemption, repurchase, retirement or other acquisition of the Notes); and
(f) any combination of prepayment and investment the transactions permitted by the foregoing clauses (3)(aa) through (e), provided, that any sale, assignment, conveyance, transfer or lease of all or substantially all of the Company's properties and assets to any Person or Persons (3)(b)whether in a single transaction or a series of related transactions) will be governed by the provisions described under Section 4.01 of this Third Supplemental Indenture and Article 5 of the Indenture and not by the provisions of this Section 6.06.
A (b1) 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 binding contract to apply the Net Cash Proceeds relating to such Asset Sale as set forth in accordance with clauses (3)(a), b) through (3)(bd) and (3)(c) above shall toll the 365-day period in respect of Section 4.10(a) (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 clauses or (3)(a), (3)(b2) and (3)(c) of Section 4.10(a) or the last proviso of this paragraph (each, a “Net Proceeds Offer Amount”) shall be applied determination by the Company to apply all or a portion of such Restricted Subsidiary Net Proceeds toward the exercise of an outstanding purchase option contract shall toll the 365-day period in respect of such Net Proceeds or portion thereof, in each case, for a period not to exceed 365 days or, in the case of a binding contract to acquire one or more Vessels, until the end of the construction or delivery period specified in such binding contract, as the same may be extended, from the expiration of the aforementioned 365-day period, provided, that such binding contract and such determination by the Company, in each case, shall be treated as a permitted application of Net Proceeds from the date of such binding contract or determination until and only until the earlier of (x) the date on which such acquisition or expenditure is consummated and (y) (i) in the case of a construction contract or any exercised purchase option contract, the date of expiration or termination of such construction contract or exercised purchase option contract and (ii) in all other cases, the 365th day following the expiration of the aforementioned 365-day period. Pending the final application of any Net Proceeds, the Company or any of its Subsidiaries may apply Net Proceeds to the repayment or reduction of outstanding indebtedness or otherwise invest the Net Proceeds in any manner that is not prohibited by the Indenture. If a Limited Permitted Asset Sale occurs at any time, the Company must, within 30 days of such Limited Permitted Asset Sale, make pursuant to Article V of this Third Supplemental Indenture an offer to purchase Notes having a principal amount equal to the Excess Proceeds of such Limited Permitted Asset Sale. The price that the Company will be required to pay (the “Net Proceeds Offer”"Limited Permitted Asset Sale Purchase Price") 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 such Pari Passu Indebtedness) (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 is equal to 100101% of the principal amount of the Notes and Pari Passu Indebtedness to be purchased, plus accrued and unpaid interest thereonto, if anybut excluding, the Limited Permitted Asset Sale Purchase Date, subject to the date right of purchase; provided, however, that if at any time any non-cash consideration received by Holders of record on the Company or any Restricted Subsidiary relevant Record Date to receive interest due on the relevant Interest Payment Date. If the offer to purchase is for less than all of the Company, as the case may be, outstanding Notes and Notes 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. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the principal amount in excess of $10.0 million, shall be applied as required the purchase amount are tendered and not withdrawn pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b)offer, the Company and its Restricted Subsidiaries will be permitted to consummate purchase Notes having an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least aggregate principal amount equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) basis, with adjustments so that only notes in an aggregate multiples of $25.00 principal amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may will be required by lawpurchased. The "Limited Permitted Asset Sale Purchase Date" will be a date specified by the Company shall comply with that is not less than 20 nor more than 35 calendar days following the requirements date of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to Limited Permitted Asset Sale notice as described in Article V of this Third Supplemental Indenture. Any Notes purchased by the extent such laws and regulations are applicable in connection with the repurchase of Notes Company pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thissuch offer to purchase will be paid for in cash.
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:
unless (1a) 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 DirectorsDirectors of the Company);
, (2b) 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 or Cash Equivalents and shall be is received at the time of such disposition; provided thatprovided, however, that this condition shall not apply to a transaction whereby the Company or any Restricted Subsidiary effects an Asset Sale by the exchange of assets or property for Productive Assets or to the sale or other disposition of all or any portion of the Company's East Mill assets located in Antioch, California, provided, further, that the amount of (A) any liabilities of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes) that are assumed by the transferee of any such assets shall be deemed to be cash for purposes of this clause provision and (2B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will shall be considered “cash” or “Cash Equivalents”; and
deemed to be cash for purposes of this provision, and (3c) upon the consummation of an Asset Sale, the Company shall (i) apply, or cause such Restricted Subsidiary to apply, the such Net Cash Proceeds relating to of such Asset Sale within 365 270 days of receipt thereof either:
the consummation of such Asset Sale (aA) to permanently reduce Indebtedness under prepay indebtedness ranking pari passu with the Credit Agreement andNotes, senior indebtedness of a Subsidiary Guarantor or debt of a Restricted Subsidiary that is not a Subsidiary Guarantor or, in the case of any such Indebtedness debt under any a revolving credit facility, effect a permanent reduction in the committed availability under any such revolving credit facility;
facility or (bB) 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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 Notes and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of documentation governing 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 (indebtedness and holders of such Pari Passu Indebtedness) (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 indebtedness ranking pari passu with the Net Proceeds Offer Amount Notes, 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, thereon to the date of purchasepurchase pursuant to an offer to purchase made by the Company as set forth below (a "Net Proceeds Offer"), or (ii)(A) commit, or cause such Restricted Subsidiary to commit (such commitments to include amounts anticipated to be expended pursuant to the Company's capital investment plan (x) as adopted by the Board of Directors of the Company and (y) evidenced by the filing of an Officers' Certificate with the Trustee stating that the total amount of the Net Cash Proceeds of such Asset Sale is less than the aggregate amount contemplated to be expended pursuant to such capital investment plan within 24 months of the consummation of such Asset Sale) within 270 days of the consummation of such Asset Sale, to apply the Net Cash Proceeds of such Asset Sale to reinvest in Productive Assets and (B) apply, or cause such Restricted Subsidiary to apply, pursuant to such commitment (which includes amounts actually expended under the capital investment plan authorized by the Board of Directors of the Company), such Net Cash Proceeds of such Asset Sale within 24 months of the consummation of such Asset Sale; provided that if any commitment under this clause (ii) is terminated or rescinded after the 225th day after the consummation of such Asset Sale, the Company or such Restricted Subsidiary, as the case may be, shall have 45 days after such termination or rescission to (1) apply such Net Cash Proceeds pursuant to clause (c)(i) above (a "Reapplication Determination") or (2) to commit, or cause such Restricted Subsidiary to commit, to apply the Net Cash Proceeds of such Asset Sale to reinvest in Productive Assets; provided that in any such case, such proceeds must be applied pursuant to clause (c)(i) or such commitment, as the case may be, no later than 24 months after the consummation of such Asset Sale or (iii) any combination of the foregoing; provided, howeverfurther, 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)cash, 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. The clause (c) above; and provided, further, that the Company may defer the making a Net Proceeds Offer until there is an the aggregate unutilized Net Cash Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall to be applied as required pursuant to this Section 4.10(b))equals or exceeds $10 million. In Pending the event final application 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 4.10 and shall comply with the provisions of this Section 4.10 with respect to any such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of Net Cash Proceeds the Company or its such Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b)Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03if any. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 270 days following the consummation of the Asset Sale that requires the Company to make a Net Proceeds Offer Trigger Date(or within 30 days after a Reapplication Determination, if applicable), with a copy to the Trustee, will specify the purchase date (which will be no earlier than 30 days nor later than 45 days from the date such notice is mailed) and shall comply with the procedures set forth in this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding the aggregate amount of the Net Proceeds Offer, Notes of tendering Holders will be repurchased on a pro rata basis (based upon the principal amount tendered). To the extent that the aggregate amount of Notes tendered pursuant to a Net Proceeds Offer is less than the aggregate amount of the Net Proceeds Offer, the Company may use such excess Net Proceeds Offer amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the amount of the Net Proceeds Offer 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 law. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice Offer and shall statestate the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 4.16 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment; provided, however, that if the aggregate principal amount of Notes tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of the Net Proceeds Offer, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 or multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be no earlier than 30 days nor later than 45 days from the Net date such notice is mailed, other than as may be required by law) (the "Proceeds Offer Payment Purchase Date");
(3) that any Note not tendered will continue to accrue interest if interest is then accruinginterest;
(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 or accrete interest after the Net Proceeds Offer Payment Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to a Net Proceeds Offer will be required to surrender the Note, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third business day Business Day prior to the Net Proceeds Offer Payment Purchase Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on two Business Days prior to the second Business Day preceding the Net Proceeds Offer 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 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 circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice unpurchased portion of the Net Notes surrendered. On or before the Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer AmountPurchase Date, the Company shall (i) accept for payment Notes or portions thereof tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal pursuant to the Net Proceeds Offer Amount which are to be purchased in accordance with item (if any)1) above, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price 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. A The Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an amount equal to the purchase price. For purposes of this Section 4.16, the Trustee shall act as the Paying Agent. Any amounts remaining after the purchase of Notes pursuant to a Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required returned by lawthe Trustee to the Company. 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis Section 4.16, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.16 by virtue thereof.
Appears in 1 contract
Limitation on Asset Sales. (a) The Company shall ▇▇▇▇▇▇ Publishing will not, and shall will not cause or permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company ▇▇▇▇▇▇ Publishing 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▇▇▇▇▇▇ Publishing’s Board of Directors);
(2) at least 75% of the consideration received by the Company ▇▇▇▇▇▇ Publishing or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash or cash, Cash Equivalents and/or assets of the same type having the same general utility as the subject assets, as determined by Issuer (“Replacement Assets”) and shall be is received at the time of such disposition; provided thatprovided, however, that the amount of (i) any liabilities (as shown on ▇▇▇▇▇▇ Publishing’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of ▇▇▇▇▇▇ Publishing or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes or any Guarantee of a Guarantor) that are assumed by the transferee of any such assets shall be deemed to be cash for purposes of this clause provision and (2ii) any securities, notes or other obligations received by the Company ▇▇▇▇▇▇ Publishing or any such Restricted Subsidiary from such transferee that are immediately converted by the Company ▇▇▇▇▇▇ Publishing or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will shall be considered “cash” or “Cash Equivalents”deemed, to the extent of cash so received, to be cash for purposes of this provision; and
(3) upon the consummation of an Asset Sale, the Company ▇▇▇▇▇▇ Publishing shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 180 days of receipt thereof eitherthereof:
(a) to permanently reduce Indebtedness under the Credit Agreement prepay any Senior Debt or Guarantor Senior Debt and, in the case of any such Indebtedness Senior Debt or Guarantor Senior Debt under any revolving credit facilityfacility (other than the Working Capital Facility), effect a permanent reduction in the availability under such revolving credit facility;; and/or
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 andand the Tranche B Lender to reduce the balance on the Tranche B Loan and to repurchase the maximum principal amount of Notes, 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 such Pari Passu Indebtedness) (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 reduced and purchased with out of the Net Cash Proceeds Offer Amount (or the portion thereof not applied pursuant to clause (a) above) at a price Purchase Price in cash in an amount equal to 100101% of the principal amount of the Notes and Pari Passu Indebtedness to be purchasedthereof, plus together with accrued and unpaid interest thereon, if any, to the date fixed for the closing of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may besuch offer, in connection accordance with the procedures set forth in Section 3.10 (a “Net Proceeds Offer”).
(4) Notwithstanding the foregoing, all Net Cash Proceeds of any Collateral in respect of 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)shall, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied pending their application in accordance with this Section 4.10. The Company may defer 4.10 or the Net Proceeds Offer until there is release thereof in accordance with the provisions of the Security Documents, be deposited in an aggregate unutilized Net Proceeds Offer Amount equal account subject to or a deposit account control agreement as provided in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b))Security Documents. In the event of the transfer of substantially all (but not all) of the property and assets of the Company ▇▇▇▇▇▇ Publishing and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.015.1, which transaction does not constitute a Change of Control, the successor corporation shall be deemed to have sold the properties and assets of the Company ▇▇▇▇▇▇ Publishing and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 covenant, and shall comply with the provisions of this Section 4.10 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 ▇▇▇▇▇▇ Publishing or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) covenant. ▇▇▇▇▇▇ Publishing will not, and (b), the Company and will not cause or permit any of its Restricted Subsidiaries will be permitted to consummate an to, engage in any Asset Sale without complying with such Sections to the extent thatSwaps, unless:
(1) at least 75% the time of the consideration for entering into such Asset Sale constitutes Replacement AssetsSwap and immediately after giving effect to such Asset Swap, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; and
(2) in the event such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received Swap involves the transfer by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and Publishing or any Restricted Subsidiary of assets having an aggregate fair market value in excess of $25.0 million, either (i) the terms of such updated debt rating and outlook Asset Swap shall be approved by a majority of the Independent Directors of ▇▇▇▇▇▇ Publishing, but in no less favorable event fewer than two Independent Directors of ▇▇▇▇▇▇ Publishing, such approval to be evidenced by a Board Resolution stating that such Independent Directors have determined that such transaction complies with the Company than immediately prior to such Inversion Transaction; foregoing provisions or, (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtednessii) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Dateevent there are fewer than two such Independent Directors, with a copy to the Trustee▇▇▇▇▇▇ Publishing shall, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 consummation thereof, obtain a favorable opinion as to the Net Proceeds Offer Payment Date;
(6) that Holders will be entitled fairness of such Asset Swap to withdraw their election if ▇▇▇▇▇▇ Publishing or such Restricted Subsidiary, as the Paying Agent receivescase may be, not later than 5:00 p.m.from a financial point of view, New York City time, on from an Independent Financial Advisor and file the second Business Day preceding same with the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchasedTrustee; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this
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:
(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 's Board of Directors);
(2) at least 75% of the consideration received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents and shall be is received at the time of such disposition; provided that, for purposes PROVIDED that the amount of this clause (2x) any securities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes and other than liabilities consisting of Disqualified Capital Stock) (i) that are assumed by the transferee of any such assets and from which the Company and its Restricted Subsidiaries are unconditionally released or (ii) in respect of which neither the Company nor any Restricted Subsidiary following such sale has any obligation and (y) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly, but in no event more than 60 days after receipt, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will ), shall be considered “cash” or “Cash Equivalents”deemed to be cash for purposes of this provision; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 360 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 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 such Pari Passu Indebtedness) (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 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 4.10. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this
Appears in 1 contract
Sources: Indenture (Big Flower Digital Services Delaware Inc)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its the Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of 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 's Board of Directors);
, (2ii) at least 7580% 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 or Cash Equivalents and shall be is received at the time of such disposition; provided thatPROVIDED, for purposes HOWEVER, that the amount of this clause (2A) any securitiesliabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or the notes thereto), of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee in such Asset Sale and from which the Company or such Restricted Subsidiary is released and (B) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will ), shall be considered “cash” or “Cash Equivalents”deemed to be cash for the purposes of this provision; and
and (3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 360 days of receipt thereof either:
either (aA) to permanently reduce prepay any Indebtedness ranking at least PARI PASSU with the Notes (including amounts under the Credit Agreement 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;
, (bB) 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 the Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably related thereto (“"Replacement Assets”"); or
, or (cC) a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) . On the 366th 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)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) the next preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, 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 Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “"Net Proceeds Offer Payment Date”") not less than 30 45 nor more than 45 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata PRO RATA basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to 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; providedPROVIDED, howeverHOWEVER, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the CompanySubsidiary, 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 4.104.15. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 5 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 5 million, shall be applied as required pursuant to this Section 4.10(b)paragraph). In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its the 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 the Restricted Subsidiaries not so transferred for purposes of this Section 4.10 covenant, and shall comply with the provisions of this Section 4.10 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 the Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) covenant. Notwithstanding Sections 4.10(a) and (b)the two immediately preceding paragraphs, the Company and its the Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections paragraphs to the extent that:
(1i) at least 7580% of the consideration for such Asset Sale constitutes Replacement Assets; and
Assets and (2ii) such Asset Sale is for fair market value; provided PROVIDED that any consideration not constituting Replacement Assets received by the Company or any of its the Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) paragraph shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03two preceding paragraphs. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 30 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 1,000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness of tendering Holders will be purchased on a pro rata PRO RATA basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The Company If the Net Proceeds Offer is on or after a Record Date and on or before the related Interest Payment Date, any accrued interest shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder be paid to the extent Person in whose name a Note is registered at the close of business on such laws Record Date, and regulations are applicable in connection with the repurchase of no additional interest shall be payable to Holders who tender Notes pursuant to a the Net Proceeds Offer. To The notice, which shall govern the extent that terms of the provisions of any securities laws or regulations conflict with thisNet Proceeds Offer, shall include such disclosures as are required by law and shall state:
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 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 Fair Market Value of the assets sold or otherwise disposed of of; (as determined in good faith by the Company’s Board of Directors);
(2ii) 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 or Cash Equivalents or Replacement Assets and shall be is received at the time of such disposition; , provided that, for purposes that the amount of this clause (2a) any securitiesliabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes) that are assumed by the transferee of any such assets, and (b) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will ), shall be considered “cash” or “Cash Equivalents”deemed to be cash for the purposes of this provision; and
and (3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 270 days of receipt thereof either:
either (aA) to (x) repay and permanently reduce Indebtedness the availability of credit under the Credit Agreement andGlobal Bank Facility or (y) repay and elect to reduce the amount of outstanding Indebtedness permitted to be incurred pursuant to clauses (x) and/or (xv) of the definition of Permitted Indebt- edness, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility;
(bB) 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 same or a similar line of business of as the Company and its or the Restricted Subsidiaries Subsidiary, as the case may be, as existing on the Issue Date date of this Indenture or in businesses reasonably related thereto (“"Replacement Assets”"); or
provided that the Net Cash Proceeds from an Asset Sale relating to the Company's tobacco business are used to make an investment in Replacement Assets relating to the tobacco business; provided further that the Net Cash Proceeds of an Asset Sale relating to assets owned directly by the Issuer or a Guarantor are used to make an investment in Replacement Assets owned directly by the Issuer or a Guarantor, (cC) to permanently reduce any outstanding Indebtedness of such Restricted Subsidiary (and to correspondingly reduce the commitments, if any, with respect thereto), or (D) a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A), (iii)(B) and (3)(biii)(C).
(b) . On the 366th 271st 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)(aiii)(A), (3)(biii)(B), (iii)(C) and (3)(ciii)(D) of Section 4.10(a) the next preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B), (iii)(C) and (3)(ciii)(D) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (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 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to 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, provided 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 dissolution shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10covenant. The Company or such Restricted Subsidiary, as the case may be, may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 10 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, 10 million shall be applied as required pursuant to this Section 4.10(b)paragraph). In Notwithstanding the event of foregoing, the transfer of substantially all restriction contained in clause (but not allii) 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 preceding paragraph shall 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 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as apply if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75more than 49% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by Capital Stock or more than 49% of the Company or any consolidated assets of its Restricted Subsidiaries Standard Wool are sold in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) a single transaction in compliance with Section 4.03all of the terms of this Indenture. Each In connection with each Net Proceeds Offer will be mailed Offer, the Issuer shall send, by first class mail, a notice to each Holder, with a copy to the record Holders as shown on the register Trustee, notice of Holders such, within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 1,000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will of tendering Holders shall be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period Period as may be required by law. Notwithstanding the foregoing, all of the outstanding Capital Stock of the Issuer shall at all times be owned by the Company free and clear of all Liens other than the Liens held by the Trustee for the benefit of the Holders of the Notes. The Company shall and any such Restricted Subsidiaries will comply with the requirements of Rule 14e-1 under the Exchange Act and the regulations thereunder and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this.
Appears in 1 contract
Sources: Indenture (Standard Commercial Corp)
Limitation on Asset Sales. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, consummate complete an Asset Sale unless:
(1) the Company or the such applicable Restricted 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 Fair Market Value of the assets sold or otherwise disposed of (as determined in good faith by the Company’s Board of Directors)of;
(2) at least not less than 75% of the consideration received by the Company or the such applicable Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of (A) cash or Cash Equivalents Equivalents, or (B) Replacement Assets, and shall be in each case set forth in subclauses (A) and (B) of this clause (a)(2), is received at the time of such sale or other disposition; provided thatprovided, for purposes that the amount of this clause (2i) any securities, notes Debt or other obligations liabilities that would appear as liabilities on a balance sheet prepared in accordance with GAAP (other than subordinated Debt) of the Company or any such applicable Restricted Subsidiary that is actually assumed by the transferee in such Asset Sale (or a third party on behalf of the transferee) and from which the Company or such applicable Restricted Subsidiaries are fully and unconditionally released, and (ii) any securities or notes received by the Company or any such applicable Restricted Subsidiary from such transferee that which are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of such Asset Sale (to the extent of the cash or Cash Equivalents received) within 30 days after receipt ), will be considered “cash” or “Cash Equivalents”deemed to be cash for purposes of this clause (a)(2) and to have been received at the time of such sale; and
(3b) upon the consummation of an The Asset Sale, Sale Proceeds received by the Company shall apply, or cause such Restricted Subsidiary to applySubsidiary, as the Net Cash Proceeds relating to case may be, may be applied, at the option of the Company or such Restricted Subsidiary:
(1) if the assets subject of such Asset Sale within 365 days constitute Notes Priority Lien Collateral, (i) first, to prepay, repay or purchase (or offer to prepay, repay or purchase, as applicable) any Priority Lien Obligations on a pro rata basis; and (ii) second, to prepay, repay or purchase (or offer to prepay, repay or purchase, as applicable) any Subordinated Lien Obligations on a pro rata basis; provided, that any repayment, prepayment or purchase of receipt (or offer to prepay, repay or purchase) obligations under the PIK Toggle Notes shall be made as provided under Section 4.01, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof either:
plus accrued unpaid interest) or by making an offer (ain accordance with the procedures set forth below for an Excess Proceeds Offer) to permanently reduce Indebtedness under all Holders of PIK Toggle Notes to purchase their PIK Toggle Notes at 100% of the Credit Agreement andprincipal amount thereof, in plus the case amount of any such Indebtedness under any revolving credit facilityaccrued but unpaid interest, effect a permanent reduction in if any, on the availability under such revolving credit facilityamount of PIK Toggle Notes that would otherwise be purchased;
(b2) if the assets subject of such Asset Sale do not constitute Notes Priority Lien Collateral, to prepay, repay or purchase (or offer to prepay, repay or purchase, as applicable) indebtedness under any Credit Facilities or any other secured Debt of the Company (including the PIK Toggle Notes) or any Restricted Subsidiary; provided, that any repayment, prepayment or purchase of (or offer to prepay, repay or purchase) obligations under the PIK Toggle Notes shall be made as provided under Section 4.01, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus accrued unpaid interest) or by making an offer (in accordance with the procedures set forth below for an Excess Proceeds Offer) to all Holders of PIK Toggle Notes to purchase their PIK Toggle Notes at 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, on the amount of PIK Toggle Notes that would otherwise be purchased; or
(3) to make capital expenditures or to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale are used or in properties and assets (including Capital Stock) that will be used useful in the business of the Company and or its Restricted Subsidiaries or in businesses reasonably similar to or ancillary to the business of the Company or its Restricted Subsidiaries as existing on conducted at the Issue Date time of such Asset Sale (including the acquisition of Capital Stock of any such business or in businesses reasonably related thereto (“Replacement Assets”businesses); or
provided, that (ci) a combination the Consolidated Secured Leverage Ratio calculated as of prepayment and investment permitted by the foregoing clauses (3)(a) last day of the most recently ended quarter prior to the Asset Sale for which financial statements are required to be delivered does not exceed 2.5 to 1.0; and (3)(b).
ii) (bx) On the 366th day after an Asset Sale such investment occurs, or such earlier date, if any, as the Board of Directors of (y) the Company or of any such Restricted Subsidiary determines not enters into contractual commitments to so apply the Net Cash Proceeds relating to such Asset Sale as set forth Proceeds, subject only to customary conditions other than the obtaining of financing, in clauses each case, within 365 days following the receipt of such Asset Sale Proceeds (3)(aand, in the case of any commitment referred to in clause (y) above, the transactions contemplated thereby are consummated within 180 days of the date such commitment is entered into); provided, (3)(b) and (3)(c) of Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 andfurther, to the extent required by Asset Sale Proceeds of Collateral are used to acquire additional assets, such additional assets (other than, for avoidance of doubt, Excluded Assets) are pledged subject to the terms Intercreditor Agreement and the Collateral Trust Agreement, as Collateral for the benefit of any Pari Passu Indebtednessthe Collateral Trustee, to all holders the Trustee and the 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 such Pari Passu Indebtedness) (and holders of PIK Toggle Notes. Pending any such Pari Passu Indebtednessreinvestment (x) Asset Sale Proceeds of Notes Priority Lien Collateral shall, as promptly as practicable, subject to the Intercreditor Agreement, be deposited in a Noteholder Proceeds Collateral Account pledged as Notes Priority Lien Collateral for the benefit of the Priority Lien Obligations, Subordinated Lien Obligations and ABL Debt Obligations in accordance with the Intercreditor Agreement and the Collateral Trust Agreement, and (y) Asset Sale Proceeds of ABL Priority Lien Collateral shall, as promptly as practicable, subject to the Intercreditor Agreement, be deposited in a deposit account or securities account pledged as ABL Priority Lien Collateral for the benefit of the ABL Debt Obligations, Priority Lien Obligations and Subordinated Lien Obligations in accordance with the Intercreditor Agreement and the Collateral Trust Agreement. If on a pro rata basisthe 45th day following any Asset Sale (or the 365th day if the Consolidated Secured Leverage Ratio calculated in accordance with Section 10.09(b)(3)(i) does not exceed 2.5 to 1.0), the maximum Available Asset Sale Proceeds exceed $7,500,000, the Company will apply an amount of equal to such Available Asset Sale Proceeds to an offer to repurchase (i) the PIK Toggle Notes and Pari Passu Indebtedness that may be purchased with the Net Proceeds Offer Amount (ii) at its option, other Secured Debt, in each case at a purchase price in cash equal to 100% of the principal amount of the PIK Toggle Notes and Pari Passu Indebtedness to be purchasedsuch other Secured Debt, plus accrued and unpaid interest thereoninterest, if any, to the purchase date of purchase(an “Excess Proceeds Offer”); provided, however, that if at any time any non-cash consideration received by the aggregate principal amount of PIK Toggle Notes (and other Secured Debt, if applicable) tendered pursuant to the Excess Proceeds Offer exceeds the Available Asset Sale Proceeds, the Company or shall first repurchase the tendered Priority Lien Debt before any Restricted Subsidiary of Subordinated Lien Debt is repurchased. The Company may satisfy 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 foregoing obligations with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Available Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10. The Company may defer the Net by making an Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were Available Asset Sale Proceeds prior to the expiration of the relevant 45-day period (or such longer period provided above) or with respect to Available Asset Sale Proceeds of less than $7,500,000. If an Asset Sale. In additionExcess Proceeds Offer is not fully subscribed, the fair market value of such properties Company may retain and assets use for general corporate purposes or any purpose not otherwise prohibited by this Indenture the portion of the Company Available Asset Sale Proceeds not required to repurchase PIK Toggle Notes (or its Restricted Subsidiaries deemed to be sold other Secured Debt, if applicable). Upon completion of any Excess Proceeds Offer, the amount of Available Asset Sale Proceeds shall be deemed reset to be Net Cash Proceeds for purposes of this Section 4.10zero.
(c) Notwithstanding Sections 4.10(a) and (b), If the Company and its Restricted Subsidiaries will be permitted is required to consummate make an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Excess Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion TransactionOffer, the Company shall apply mail, within 30 days of the 45th day following the receipt of Available Asset Sale Proceeds (or the 365th day if the Consolidated Secured Leverage Ratio calculated in accordance with Section 10.09(b)(3)(i) does not exceed 2.5 to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable 1.0) exceeding $7,500,000 as specified in Section 10.09(b), a notice to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion TransactionHolders, at the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to address appearing in the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, Register maintained by the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger DateRegistrar, with a copy to the Trustee, and shall comply with stating the procedures information set forth in this Indenturebelow. The notice to notice, which shall govern the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to terms of the Net Excess Proceeds Offer. Such notice , shall state:
(1) that the Net Company is offering to apply the Available Asset Sale Proceeds Offer is being made pursuant to this Section 4.10 repurchase PIK Toggle Notes at a purchase price in cash equal to 100% of the principal amount of the PIK Toggle Notes, plus accrued and that (subject unpaid interest, if any, to the provisions hereof) all Notes tendered will be accepted for paymentpurchase date;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be no earlier than 30 days nor later than 60 days from the Net Proceeds Offer Payment Datedate such notice is mailed);
(3) the instructions that any Note not tendered will continue each Holder must follow in order to accrue interest if interest is then accruing;have PIK Toggle Notes purchased, which shall be reasonable and customary for transactions of this nature; and
(4) that, unless the Company defaults calculations used in making payment therefor, any Note accepted for payment pursuant determining the amount of Available Asset Sale Proceeds to be applied 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 the Note, with the form entitled “Option purchase 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by lawPIK Toggle Notes. 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 PIK Toggle Notes pursuant to a Net in connection with an Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis Section 10.09, the Company shall comply with the applicable securities laws and regulations and shall be deemed not to have breached its obligations under this Section 10.09 by virtue of such compliance.
Appears in 1 contract
Sources: First Supplemental Indenture (Catalyst Paper General Partnership)
Limitation on Asset Sales. (a) The Company shall ▇▇▇▇▇▇ Publishing will not, and shall will not cause or permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company ▇▇▇▇▇▇ Publishing 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▇▇▇▇▇▇ Publishing’s Board of Directors);
(2) at least 75% of the consideration received by the Company ▇▇▇▇▇▇ Publishing or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash or cash, Cash Equivalents and/or assets of the same type having the same general utility as the subject assets, as determined by Issuer (“Replacement Assets”) and shall be is received at the time of such disposition; provided thatprovided, however, that the amount of (i) any liabilities (as shown on ▇▇▇▇▇▇ Publishing’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of ▇▇▇▇▇▇ Publishing or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes or any Guarantee of a Guarantor) that are assumed by the transferee of any such assets shall be deemed to be cash for purposes of this clause provision and (2ii) any securities, notes or other obligations received by the Company ▇▇▇▇▇▇ Publishing or any such Restricted Subsidiary from such transferee that are immediately converted by the Company ▇▇▇▇▇▇ Publishing or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will shall be considered “cash” or “Cash Equivalents”deemed, to the extent of cash so received, to be cash for purposes of this provision; and
(3) upon the consummation of an Asset Sale, the Company ▇▇▇▇▇▇ Publishing shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 180 days of receipt thereof eitherthereof:
(a) to permanently reduce Indebtedness under the Credit Agreement prepay any Senior Debt or Guarantor Senior Debt and, in the case of any such Indebtedness Senior Debt or Guarantor Senior Debt under any revolving credit facilityfacility (other than the Working Capital Facility), effect a permanent reduction in the availability under such revolving credit facility;; and/or
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 andand the Tranche B Lender to reduce the balance on the Tranche B Loan and to repurchase the maximum principal amount of Notes, 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 such Pari Passu Indebtedness) (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 reduced and purchased with out of the Net Cash Proceeds Offer Amount (or the portion thereof not applied pursuant to clause (a) above) at a price Purchase Price in cash in an amount equal to 100101% of the principal amount of the Notes and Pari Passu Indebtedness to be purchasedthereof, plus together with accrued and unpaid interest thereon, if any, to the date fixed for the closing of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may besuch offer, in connection accordance with the procedures set forth in Section 3.10 (a “Net Proceeds Offer”).
(4) Notwithstanding the foregoing, all Net Cash Proceeds of any Collateral in respect of 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)shall, then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied pending their application in accordance with this Section 4.10. The Company may defer 4.10 or the Net Proceeds Offer until there is release thereof in accordance with the provisions of the Security Documents, be deposited in an aggregate unutilized Net Proceeds Offer Amount equal account subject to or a deposit account control agreement as provided in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b))Security Documents. In the event of the transfer of substantially all (but not all) of the property and assets of the Company ▇▇▇▇▇▇ Publishing and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.015.1, which transaction does not constitute a Change of Control, the successor corporation shall be deemed to have sold the properties and assets of the Company ▇▇▇▇▇▇ Publishing and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 covenant, and shall comply with the provisions of this Section 4.10 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 ▇▇▇▇▇▇ Publishing or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) covenant. ▇▇▇▇▇▇ Publishing will not, and (b), the Company and will not cause or permit any of its Restricted Subsidiaries will be permitted to consummate an to, engage in any Asset Sale without complying with such Sections to the extent thatSwaps, unless:
(1) at least 75% the time of the consideration for entering into such Asset Sale constitutes Replacement Assets; andSwap and immediately after giving effect to such Asset Swap, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof;
(2) in the event such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received Swap involves the transfer by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and Publishing or any Restricted Subsidiary of assets having an aggregate fair market value in excess of $25.0 million, either (i) the terms of such updated debt rating and outlook Asset Swap shall be approved by a majority of the Independent Directors of ▇▇▇▇▇▇ Publishing, but in no less favorable event fewer than two Independent Directors of ▇▇▇▇▇▇ Publishing, such approval to be evidenced by a Board Resolution stating that such Independent Directors have determined that such transaction complies with the foregoing provisions or, (ii) in the event there are fewer than two such Independent Directors, ▇▇▇▇▇▇ Publishing shall, prior to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transactionconsummation thereof, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal obtain a favorable opinion as to the Consolidated Fixed Charge Coverage Ratio immediately prior fairness of such Asset Swap to ▇▇▇▇▇▇ Publishing or such Inversion Transaction; Restricted Subsidiary, as the case may be, from a financial point of view, from an Independent Financial Advisor and (iv) immediately following such Inversion Transaction, file the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance same with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);; and
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 event such Asset Swap involves the transfer by ▇▇▇▇▇▇ Publishing or any Restricted Subsidiary of assets having an aggregate fair market value in excess of $50.0 million, ▇▇▇▇▇▇ Publishing shall, prior to the close of business on the third business day prior consummation thereof, obtain a favorable opinion as to the Net Proceeds Offer Payment Date;
(6) that Holders will be entitled fairness of such Asset Swap to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days ▇▇▇▇▇▇ Publishing or such longer period Restricted Subsidiary, as the case may be required by law. The Company shall comply be, from a financial point of view, from an Independent Financial Advisor and file the same 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 thisTrustee.
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:
unless (1i) 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 's Board of Directors);
; (2ii) at least 75% 7S% 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 or Cash Equivalents and shall be received at (provided that the time amount of any liabilities (as shown on the Company's or such disposition; provided that, for purposes Restricted Subsidiary's most recent balance sheet) of this clause (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee (other than liabilities that are converted by their terms subordinated to the Notes) that are assumed by the Company transferee of any such assets shall be deemed to be cash for the purposes of this provision) and is received at the time of such disposition or such Restricted Subsidiary into cash or Cash Equivalents within 180 days thereafter; and (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
either (aA) to permanently reduce prepay any Senior Debt or Indebtedness under the Credit Agreement of a Wholly Owned Restricted Subsidiary 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;
, (bB) 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 the same, similar or reasonably related thereto (“"Replacement Assets”"); or
, or (cC) a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii) (A) and (3)(biii) (B).
(b) On . Subject to the last sentence of this paragraph, 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 clause (3)(aiii) (A), (3)(biii) and (3)(cB) or (iii) (C) of Section 4.10(a) the next preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii) (A), (3)(biii) (B) and (3)(ciii) (C) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, 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 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to 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, but installments of interest, the maturity of which is on or prior to the Proceeds Purchase Date, shall be payable to Holders of record at the close of business on the relevant record dates referred to in Section 2.12; 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 4.10covenant. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million 2,000,000 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 $10.0 million2,000,000, shall be applied as required pursuant to this Section 4.10(b)the preceding paragraph). In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thistrans-
Appears in 1 contract
Sources: Securities Purchase Agreement (Wilson Greatbatch Technologies Inc)
Limitation on Asset Sales. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, consummate an Asset Sale unless:
(1including the sale of any of the Capital Stock of any Restricted Subsidiary but excluding the sale of any interests in Unrestricted Subsidiaries) providing for Net Proceeds in excess of $1,000,000 unless the Net Proceeds from such Asset Sale are applied (in any manner otherwise permitted by this Indenture) to one or more of the following purposes in such combination as the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration shall elect: (i) an investment in another asset or business in the same line of business as, or a line of business similar, ancillary, complementary or reasonably related to that of, a line of business or businesses of the Company and its Restricted Subsidiaries at the time of the Asset Sale; provided that such investment occurs on or prior to the 270th day following the date of such Asset Sale at least equal (the "Asset ----- Sale Disposition Date"), (ii) the reimbursement of the Company or its Restricted --------------------- Subsidiaries for expenditures made, and costs incurred, to repair, rebuild, replace or restore property subject to loss, damage or taking to the fair market value extent that the Net Proceeds consist of insurance proceeds received on account of such loss, damage or taking, (iii) the purchase, redemption or other prepayment or repayment of outstanding Senior Indebtedness of the assets sold Company or otherwise disposed its Restricted Subsidiaries on or prior to the 270th day following the Asset Sale Disposition Date and permanent reduction of the amount of such Indebtedness, or (as determined in good faith by iv) the Company’s Board cash collateralization of Directors);
(2) letters of credit or bankers acceptances designed to facilitate the purchase of goods and services provided that any cash collateral released to the Company or its Restricted Subsidiaries upon the expiration of such letters of credit, bankers acceptances or other instruments or arrangements shall again be deemed to be Net Proceeds received on the date of such release. The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate an Asset Sale unless at least 75% of the consideration thereof received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash, cash equivalents or Cash Equivalents and shall be received at the time of such dispositionMarketable Securities; provided that, solely for purposes of this clause calculating such 75% of the consideration, the amount of (2x) any securitiesliabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto, excluding contingent liabilities and trade payables) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Securities) that are assumed by the transferee of any such assets and (y) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly, but in no event more than 45 days after receipt, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash received), shall be deemed to be cash and cash equivalents for purposes of this provision. Any Net Proceeds from any Asset Sale that are not applied or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; andinvested as provided in the first sentence of this paragraph shall constitute "Excess Proceeds." ---------------
(3b) upon When the consummation aggregate amount of Excess Proceeds (net of Foreign Proceeds, as defined below) exceeds $10,000,000 (such date being an "Asset SaleSale ---------- Trigger Date"), 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 either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(b) to make an investment in properties Offer to purchase on a pro rata basis ------------ the maximum principal amount of the Securities 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 pari passu Indebtedness of the Company and its or any Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably related thereto (“Replacement Assets”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) On the 366th day after an Asset Sale or such earlier dateSubsidiary, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not that requires, pursuant to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) (each, a “Net Proceeds Offer Trigger Date”)its terms, such aggregate amount of Net Cash Proceeds that have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(a)an offer, (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum amount of Notes and Pari Passu Indebtedness then outstanding that may be purchased with the Net out of Excess Proceeds Offer Amount (an "Asset Sale Offer"), at a an offer price in cash in an amount equal ---------------- to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchased, thereof plus any accrued and unpaid interest thereon, if anyto the date the Securities tendered are purchased and paid for in accordance with this Section 4.05 (the "Asset Sale Purchase Date"). Notwithstanding the ------------------------ foregoing, to the date extent that any or all of purchase; provided, however, that if at any time any non-cash consideration received the Net Proceeds of an Asset Sale is prohibited or delayed by applicable local law from being repatriated to the United States or such repatriation would be expected to result in material tax liability to the Company or any Restricted Subsidiary Subsidiary, as determined in good faith by the Board of Directors (such Net Proceeds, the "Foreign Proceeds"), the ---------------- Company shall not be required to make an Asset Sale Offer with respect to such proceeds. Foreign Proceeds shall be applied, in such combination as the Company shall select, in accordance with clause (i), (ii), (iii) or (iv) of paragraph (a) of this Section 4.05, or, at the option of the Company, may be retained as cash or Marketable Securities for so long, but only for so long, as the case may be, applicable local law prohibits or delays repatriation to the United States or would result in connection with material tax liability as described above. Within 30 days following 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. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion TransactionTrigger Date, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with mail a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable each holder of Securities at such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall stateholder's registered address stating:
(1i) that the Net Proceeds an Asset Sale Offer is being made pursuant to this Section 4.10 4.05, the length of time the Asset Sale Offer shall remain open and the maximum principal amount of Securities that (subject to the provisions hereof) all Notes tendered will be accepted for paymentpayment pursuant to such Asset Sale Offer;
(2ii) the purchase price (including price, the amount of accrued interest) and unpaid interest as of the Asset Sale Purchase Date and the purchase date Asset Sale Purchase Date (which shall be no earlier than 30 days and no later than 60 days from the Net Proceeds Offer Payment Datedate such notice is mailed);
(3iii) that any Note Security or portion thereof not tendered or accepted for payment will continue to accrue interest if interest is then accruinginterest;
(4iv) that, unless the Company defaults in making payment therefor, that any Note Security or portion thereof accepted for payment pursuant to the Net Proceeds Asset Sale Offer shall cease to accrue interest on and after the Net Proceeds Offer Payment Asset Sale Purchase Date;
(5v) that Holders electing to have a Note Security purchased pursuant to a Net Proceeds the Asset Sale Offer will be required to surrender the NoteSecurity, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note Security completed, to the a Paying Agent at the address specified in the notice prior to at least three Business Days before the close of business on the third business day prior to the Net Proceeds Offer Payment Asset Sale Purchase Date;
(6vi) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, the close of business on the second third Business Day preceding before the Net Proceeds Offer Asset Sale Purchase Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes Security the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have the Security purchased;
(vii) that, if the aggregate principal amount of Securities surrendered by Holders exceeds the Excess Proceeds, the Trustee shall select the Securities to be purchased on a pro rata basis, by lot or by any other method that the Trustee considers fair and appropriate and, if the Securities are listed on any securities exchange, by a method that complies with the requirements of such Note purchasedexchange; provided that, if less than all of a holder's Securities are to be redeemed or accepted for payment, only principal amounts of $1,000 or integral multiples thereof may be selected for redemption or accepted for payment;
(viii) that Holders whose Securities were purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; and
(7ix) a brief description of the circumstances and relevant facts regarding such Net Proceeds Asset Sale. On the Asset Sale Purchase Date, the Company shall, to the extent required by this Indenture and the Asset Sale Offer, (1) accept for payment the maximum principal amount of Securities or portions thereof tendered pursuant to the Asset Sale Offer that can be purchased out of Excess Proceeds, (2) deposit with the Paying Agent the aggregate purchase price of all Securities or portions thereof accepted for payment and any accrued and unpaid interest on such Securities as of the Asset Sale Purchase Date, and (3) deliver or cause to be delivered to the Trustee all Securities tendered pursuant to the Asset Sale Offer. Upon receiving notice The Paying Agent shall promptly mail to each holder of Securities or portions thereof accepted for payment an amount equal to the purchase price for such Securities plus any accrued and unpaid interest thereon, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book-entry) to such holder of Securities accepted for payment in part a new Security equal in principal amount to any unpurchased portion of the Net Proceeds Offer, Holders may elect to tender their Notes Securities and any Security not accepted for payment in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will shall be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal promptly returned to the Net Proceeds Holder thereof. The Company will publicly announce the results of the Asset Sale Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days on or such longer period as may be required by lawsoon as practicable after the Asset Sale Purchase Date. The Company shall comply with the requirements of Rule 14e-1 any tender offer rules under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable which may then be applicable, including Rule 14e-1, in connection with the repurchase of Notes pursuant to a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with thisprovisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Indenture by virtue thereof.
(c) To the extent that any Excess Proceeds (other than Foreign Proceeds) remain after completion of an Asset Sale Offer, the Company may use such remaining amount for general corporate purposes including repayment of Subordinated Indebtedness. Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero plus the amount, if any, of cash or Marketable Securities attributable to Foreign Proceeds.
Appears in 1 contract
Sources: Indenture (Carson Products Co)
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:
unless (1i) the Company or the applicable Restricted Subsidiary, as the case may be, such Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets sold included in such Asset Sale, (ii) immediately before and immediately after giving effect to such Asset Sale, no Default or otherwise disposed Event of Default shall have occurred and be continuing and (as determined in good faith by the Company’s Board of Directors);
(2iii) at least 75% of the consideration received by the Company or such Subsidiary therefor is in the Restricted form of cash paid at the closing thereof, provided, however, that this clause (iii) shall not apply if, after giving effect to such Asset Sale, the aggregate principal amount of all notes or similar debt obligations and Fair Market Value of all equity securities received by the Company from all Asset Sales since the Issue Date (other than such notes or similar debt obligations and such equity securities converted into or otherwise disposed of for cash and applied in accordance with the second succeeding sentence) would not exceed 2.5% of Consolidated Tangible Assets. The amount (without duplication) of any (x) Indebtedness (other than Subordinated Indebtedness) of the Company or such Subsidiary that is expressly assumed by the transferee in such Asset Sale and with respect to which the Company or such Subsidiary, as the case may be, from such Asset Sale shall be in is unconditionally released by the form of cash or Cash Equivalents and shall be received at the time holder of such disposition; provided that, for purposes of this clause Indebtedness and (2y) any securitiesnotes, notes securities or other similar obligations or items of property received by the Company or any such Restricted Subsidiary from such transferee that are converted immediately converted, sold or exchanged by the Company or such Restricted Subsidiary into for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents actually so received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso shall be deemed to be cash for purposes of this 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 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 such Pari Passu Indebtedness) (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 Section 4.12. If at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Companysuch 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 the date of such conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.104.12. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). In the event of the A transfer of substantially all (but not all) of the property and assets of by the Company and its Restricted Subsidiaries as an entirety to a Person in Wholly Owned Subsidiary or by a transaction permitted under Section 5.01, which transaction does not constitute a Change of Control, the successor corporation shall be deemed Wholly Owned Subsidiary to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it 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 another Wholly Owned Subsidiary will not be deemed to be Net Cash Proceeds for purposes an Asset Sale, and a transfer of this assets that constitutes a Restricted Payment and that is permitted under Section 4.104.10 hereof will not be deemed to be an Asset Sale.
(cb) Notwithstanding Sections 4.10(a) and (b)If the Company or any Subsidiary engages in an Asset Sale, the Company and its Restricted Subsidiaries will be permitted to consummate an or such Subsidiary shall, no later than 360 days after such Asset Sale without complying with such Sections to the extent that:
Sale, (1i) at least 75% apply all or any of the consideration for such Asset Sale constitutes Replacement Assets; and
Net Proceeds therefrom to repay Senior Indebtedness in accordance with the applicable provisions thereof, (2ii) such Asset Sale is for fair market value; provided that invest all or any consideration not constituting Replacement Assets received by part of the Net Proceeds therefrom in the lines of business of the Company or any of its Restricted Subsidiaries in connection with immediately prior to such investment or (iii) any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions combination of Sections 4.10(aclauses (i) and (b)ii) above. The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation amount of such Inversion Transaction; Net Proceeds not applied or invested as provided in this paragraph (iib) immediately following such Inversion Transactionwill constitute “Excess Proceeds.”
(c) When the aggregate amount of Excess Proceeds equals or exceeds $5,000,000, the Company shall apply be required to S&P and ▇▇▇▇▇’▇ make an offer to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; purchase (iiian “Asset Sale Offer”) immediately following such Inversion Transactionfrom all Holders, the Company’s Consolidated Fixed Charge Coverage Ratio is at least an aggregate principal amount of Notes equal to the Consolidated Fixed Charge Coverage Ratio immediately prior amount of such Excess Proceeds as follows:
(i) The Company shall make an Asset Sale Offer to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) all Holders in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply accordance with the procedures set forth in this Indenture. Section 4.12 to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased out of the amount (the “Asset Sale Payment Amount”) of such Excess Proceeds.
(ii) The notice offer price for the Notes shall be payable in cash in an amount equal to 100% of the principal amount of the Notes tendered pursuant to such Asset Sale Offer, plus accrued and unpaid interest and Additional Interest, if any, to the Holders shall contain all instructions and materials necessary to enable date such Holders to tender Asset Sale Offer is consummated (the “Asset Sale Purchase Price”), in accordance with the procedures set forth in this Section 4.12. To the extent that the aggregate Asset Sale Purchase Price of Notes tendered pursuant to an Asset Sale Offer is less than the Asset Sale Payment Amount relating thereto (such shortfall constituting a “Net Proceeds Deficiency”), the Company may use such Net Proceeds Deficiency, or a portion thereof, for general corporate purposes.
(iii) If the aggregate Asset Sale Purchase Price of Notes validly tendered and not withdrawn by holders thereof exceeds the Asset Sale Payment Amount, Notes to be purchased shall be selected on a pro rata basis.
(iv) Upon completion of such Asset Sale Offer in accordance with the foregoing provisions, the amount of Excess Proceeds with respect to which such Asset Sale Offer was made shall be deemed to be zero. In the event that any other Indebtedness of the Company which ranks pari passu with the Notes (“Other Debt”) requires an offer to purchase to be made to repurchase such Other Debt upon the consummation of an Asset Sale, the Company may apply the Excess Proceeds to both purchase such Other Debt and to make an Asset Sale Offer, provided, that the purchase price of such Other Debt does not exceed 100% of the aggregate principal amount or accreted value thereof plus interest thereon. Such With respect to any Excess Proceeds, the Company shall make the Asset Sale Offer in respect thereof at the same time as the analogous offer to purchase is made pursuant to any Other Debt and the purchase date in respect thereof shall be the same as the purchase date in respect thereof pursuant to any Other Debt. With respect to any Asset Sale Offer effected pursuant to this Section 4.12, to the extent the aggregate principal amount of Notes and Other Debt, if any, tendered pursuant to such Asset Sale Offer and the concurrent offer to purchase with respect to such Other Debt exceeds the Excess Proceeds, such Notes and Other Debt, if any, shall be purchased pro rata based on the aggregate principal amount of such Notes and such Other Debt tendered by each holder thereof.
(d) If the Company is required to make an Asset Sale Offer, the Company shall, within 30 days following the date specified in clause (c) above, notify the Trustee thereof and give written notice shall stateof such Asset Sale Offer to each Holder by first-class mail, postage prepaid, at the address of such Holder appearing in the register maintained by the Registrar, stating:
(1) that the Net Proceeds an Asset Sale Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment4.12;
(2) that such Holders have the right to require the Company to apply the Excess Proceeds to repurchase the Notes at a purchase price (including in cash equal to 100% of the principal amount of thereof plus accrued and unpaid interest) and , if any, to the purchase date (which shall be no earlier than 30 days and not later than 60 days from the Net date such notice is mailed (the “Excess Proceeds Offer Payment Date”);
(3) that any Note not tendered or accepted for payment will continue to accrue interest if interest is then accruinginterest;
(4) that, unless the Company defaults in making payment therefor, that any Note Notes accepted for payment pursuant to the Net Proceeds Asset Sale Offer shall cease to accrue interest after the Net Excess Proceeds Offer Payment Date;
(5) that Holders electing accepting the offer to have a Note their Notes purchased pursuant to a Net Proceeds the Asset Sale Offer will be required to surrender the NoteNotes, 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 Business Day preceding the Net Excess Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election acceptance of the Asset Sale Offer if the Paying Agent receives, not later than 5:00 p.m., New York City time, the close of business on the second third Business Day preceding the Net Excess Proceeds Offer Payment Date, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his or her election to have such Note Notes purchased; and;
(7) that if the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice aggregate principal amount of Notes surrendered by Holders exceeds the Net Proceeds Offeramount of Excess Proceeds, Holders may elect Company shall select the Notes to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis so that the aggregate amount of Notes so purchased equals the amount of Excess Proceeds (based on amounts tendered) with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased);
(8) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered; provided that each Note purchased and each such new Note issued shall be in an aggregate original principal amount in denominations of $1,000 or integral multiples thereof;
(9) the calculations used in determining the amount of Excess Proceeds to be applied to the purchase of such Notes;
(10) any other procedures that a Holder must follow to accept an Asset Sale Offer or effect withdrawal of such acceptance; and
(11) the name and address of the Paying Agent. On the Excess Proceeds Payment Date, the Company shall, to the extent lawful, (1) accept for payment, on a pro rata basis to the extent necessary, Notes or portions thereof tendered pursuant to the Asset Sale Offer, (2) deposit with the Paying Agent US legal tender sufficient to pay the purchase price plus accrued and unpaid interest, if any, on the Notes to be purchased or portions thereof, (3) deliver or cause to be delivered to the Trustee Notes so 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 Paying Agent shall promptly mail to each Holder so accepted payment in an amount equal to the Net Proceeds Offer Amount purchase price for such Notes, and the Company shall execute and issue, and the Trustee shall promptly authenticate and make available for delivery to such Holder, a new Note equal in principal amount to any unpurchased portion of the Notes surrendered; provided that each Note purchased and each such new Note issued shall be in an original principal amount in denominations of $1,000 or integral multiples thereof.
(if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. e) 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 a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis Section 4.12, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.12 by virtue thereof.
Appears in 1 contract
Sources: Indenture (Healthsouth Corp)
Limitation on Asset Sales. (a) The Neither the Company shall not, and shall not permit nor any of its Restricted Subsidiaries to, will consummate an Asset Sale unless:
unless (1i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of 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 management of the Company or, if such Asset Sale involves consideration in excess of $2,500,000, by the Board of Directors of the Company’s Board of Directors, as evidenced by a board resolution);
, (2ii) 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 is cash or Cash Equivalents (other than in the form case where the Company is exchanging all or substantially all the assets of one or more broadcast businesses operated by the Company (including by way of the transfer of the capital stock) for all or substantially all the assets (including by way of the transfer of the capital stock) constituting one or more broadcast businesses operated by another Person, in which event the foregoing requirement with respect to the receipt of cash or Cash Equivalents shall not apply) and shall be is received at the time of such disposition; provided that, for purposes of this clause disposition and (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3iii) upon the consummation of an Asset Sale, the Company shall apply, applies or cause causes such Restricted Subsidiary to apply, the such Net Cash Proceeds relating to such Asset Sale within 365 180 days of receipt thereof either:
either (aA) to permanently reduce Indebtedness under repay the Credit Agreement and, in the case principal of any such Senior Indebtedness under any 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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 Indebtednesssuch Senior Indebtedness relates to principal under a revolving credit or similar facility, to all obtain a corresponding reduction in the commitments thereunder), (B) to reinvest, or to be contractually committed to reinvest pursuant to a binding agreement, in Productive Assets and, in the latter case, to have so reinvested within 360 days of the date of receipt of such Net Cash Proceeds, or (C) to purchase Securities (pro rata among the holders of such Pari Passu IndebtednessSecurities tendered to the Company for purchase, on a date (based upon 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum aggregate principal amount of Notes and Pari Passu Indebtedness that may be purchased with the Net Proceeds Offer Amount Securities so tendered) tendered to the Company for purchase at a price equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchasedthereof, plus accrued and unpaid interest thereon, if any, thereon to the date of purchase, pursuant to an offer to purchase made by the Company as set forth below (a "NET PROCEEDS OFFER"); provided, however, that, prior to making any such Net Proceeds Offer, the Company shall, to the extent required pursuant to the 9-3/8% Notes Indenture as in effect on the Issue Date, offer to use such Net Cash Proceeds to repurchase and use all or a portion of such Net Cash Proceeds to repurchase 9-3/8% Notes and then, to the extent required pursuant to the 8-3/4% Notes Indenture as in effect on the Issue Date, offer to use the remaining Net Cash Proceeds to repurchase 8-3/4% Notes and then, to the extent required pursuant to the 10-1/2% Notes Indenture as in effect on the Issue Date, offer to use the remaining Net Cash Proceeds to repurchase 10-1/2% Notes and then, to the extent required pursuant to the 8-1/8% Notes Indenture as in effect on the Issue Date, offer to use the remaining Net Cash Proceeds to repurchase 8-1/8% Notes; in which event the Company shall be required to use only the Net Cash Proceeds remaining after such repurchases to make the Net Proceeds Offer contemplated by this Section 4.16; provided, further, 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)cash, 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. The clause (iii) above; provided, further that the Company may defer the making a Net Proceeds Offer until there is an the aggregate unutilized Net Cash Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which timetaking into account any Net Cash Proceeds used to repurchase 9-3/8% Notes, 8-3/4% Notes, 10-1/2% Notes and 8-1/8% Notes pursuant to the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall second immediately preceding proviso) to be applied as required pursuant to this Section 4.10(b))equals or exceeds $5,000,000. In the event of the transfer of substantially a transaction effected in accordance with Section 5.01 which involves less than all (but not all) of the property and or assets of the Company and its Restricted Subsidiaries as an entirety to a Person Company, only property or assets not included in a such 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 been 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 in an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(cb) Notwithstanding Sections 4.10(a) and Subject to the deferral right set forth in the final proviso of paragraph (ba), the Company and its Restricted Subsidiaries will each notice of a Net Proceeds Offer pursuant to this Section 4.16 shall be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received mailed, by first class mail, by the Company or any to Holders of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders Securities as shown on the applicable register of Holders of the Securities not more than 180 days after the relevant Asset Sale or, in the event the Company or a Subsidiary has entered into a binding agreement as provided in (B) above, within 25 180 days following the Net Proceeds Offer Trigger Datetermination of such agreement but in no event later than 360 days after the relevant Asset Sale, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes Securities pursuant to the Net Proceeds Offer. Such notice Offer and shall statestate the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 4.16 and that (subject Holders of Securities may elect to the provisions hereof) tender their Securities in denominations of less than $1,000 and that all Notes Securities validly 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 Company shall select the Securities to be purchased on a pro rata basis (based upon the principal amount tendered);
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be no earlier than 30 days nor later than 45 days from the Net Proceeds Offer Payment Datedate such notice is mailed, other than as may be required by law) (the "PROCEEDS PURCHASE DATE");
(3) that any Note Security not tendered will continue to accrue interest if interest is then accruinginterest;
(4) that, unless the Company defaults in making payment therefor, any Note Security accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Purchase Date;
(5) that Holders electing to have a Note Security purchased pursuant to a Net Proceeds Offer will be required to surrender the NoteSecurity, properly endorsed for transfer together with such other customary documents as the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completedCompany reasonably may request, to the Paying Agent at the address specified in the notice prior to the close of business on the third business day Business Day prior to the Net Proceeds Offer Payment Purchase Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on five Business Days prior to the second Business Day preceding the Net Proceeds Offer Purchase Date, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes Securities the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note Security purchased;
(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; and
(7) 8) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of .
(c) On or before the Proceeds Purchase Date, the Company shall (i) accept for payment Securities or portions thereof validly tendered pursuant to the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tenderedii) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The Company shall comply deposit with the requirements Paying Agent U.S. Legal Tender sufficient to pay the purchase price 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 thisall Securities so tendered and
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:
(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);
(2) at least 75% of the consideration received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents and shall be is received at the time of such disposition; provided that, for purposes that the amount of this clause (2x) any securities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes and other than liabilities consisting of Disqualified Capital Stock) (i) that are assumed by the transferee of any such assets and from which the Company and its Restricted Subsidiaries are unconditionally released or (ii) in respect of which neither the Company nor any Restricted Subsidiary following such sale has any obligation and (y) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly, but in no event more than 60 days after receipt, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will ), shall be considered “cash” or “Cash Equivalents”deemed to be cash for purposes of this provision; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 450 days of receipt thereof either:
(aA) to permanently reduce repay any secured Indebtedness under (other than (1) Subordinated Obligations and (2) in the Credit Agreement event the Notes become secured by a Lien on any property or assets, Indebtedness secured equally and ratably in such property or assets or secured by Liens junior in priority to the Liens securing the Notes) 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;
(bB) to make reinvest in Productive Assets (and to the extent such reinvestment constitutes an investment in properties and assets that replace the properties and assets that were the subject of Investment, 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”reinvestment complies with Section 4.8); or
(cC) a combination of prepayment repayment and investment permitted by the foregoing clauses (3)(a3)(A) and (3)(b3)(B).
(b) . On the 366th 451st 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)(a3)(A), (3)(b3)(B) and (3)(c3)(C) of Section 4.10(a) the immediately preceding sentence (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(a3)(A), (3)(b3)(B) and (3)(c3)(C) of Section 4.10(a) or the last proviso of this paragraph immediately preceding sentence (each, each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase for cash (the “Net Proceeds Offer”) to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 45 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) pari passu Indebtedness that is subject to a similar repurchase offer requirement on a pro rata basis, the maximum that amount of Notes and Pari Passu such pari passu Indebtedness that may be purchased with equal to the Net Proceeds Offer Amount at a price in cash equal to 100% of the principal amount of the Notes and Pari Passu such pari passu Indebtedness to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest interest, dividends or other earnings 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 4.10. The Company covenant.
(b) Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $30.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may defer 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 until there is an aggregate unutilized Trigger Date relating to such initial Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more all Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). In the event of the transfer of substantially all (but not all) of the property and assets of by the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01aggregates at least $30.0 million, at 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 4.10 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 time the Company or its such Restricted Subsidiaries deemed Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to be sold make a Net Proceeds Offer (the first date the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $30.0 million or more shall be deemed to be a Net Cash Proceeds for purposes of this Section 4.10Offer Trigger Date).
(c) Notwithstanding Sections 4.10(aparagraphs (a) and (b)) of this Section 4.12, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections paragraphs to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement AssetsProductive Assets (and to the extent any of such Productive Assets constitutes an Investment, such Investment complies with Section 4.8); and
(2) such Asset Sale is for at least fair market valuevalue (as determined in good faith by the Company’s Board of Directors); provided that any consideration not constituting Replacement Productive Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) paragraph shall constitute Net Cash Proceeds and shall be subject to the provisions of Sections 4.10(a) and (b). The provisions this covenant with respect to the application of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion TransactionNet Cash Proceeds; provided that at the time of entering into such transaction or immediately after giving effect thereto, no Default or Event of Default shall have occurred or be continuing or would occur as a consequence thereof.
(id) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within Within 25 days following the Net Proceeds Offer Trigger Date, the Company shall mail or cause the Trustee to mail (in the Company’s name and at its expense) notice of a Net Proceeds Offer to the Holders of the Notes at their last registered addresses with a copy to the Trustee, Trustee and the Paying Agent. The Net Proceeds Offer shall comply with remain open from the procedures set forth in this Indenturetime of mailing for at least 20 Business Days and until the close of business on the third Business Day prior to the Net Proceeds Offer Payment Date or such longer period as may be required by Law. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice The notice, which shall govern the terms of the Net Proceeds Offer, shall state:
(1i) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment4.12;
(2ii) the purchase price (including the amount of accrued and unpaid interest, if any) for each Note and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3iii) that any Note not tendered or accepted for payment will continue to accrue interest if interest is then accruingin accordance with the terms thereof;
(4iv) that, unless the Company defaults in making payment therefor, that any Note accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment DateDate unless the Company shall fail to make payment therefor;
(5v) that Holders electing to have a Note Notes purchased pursuant to a Net Proceeds Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, their Notes to the Paying Agent at the address specified in the notice prior to the close of business 5:00 p.m., New York City time, on the third business day prior to Business Day immediately preceding the Net Proceeds Offer Payment DateDate and must complete any form letter of transmittal proposed by the Company and acceptable to the Trustee and the Paying Agent;
(6vi) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second third Business Day immediately preceding the Net Proceeds Offer Payment Date, a telex or facsimile transmission (confirmed by overnight delivery of the original thereof) or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase purchase, the Note certificate number (if any) and a statement that such Holder is withdrawing his election to have such Note Notes purchased;
(vii) that if Notes and, if applicable, other pari passu Indebtedness in a principal amount in excess of the Holders’ pro rata share of the Net Proceeds are tendered pursuant to a Net Proceeds Offer, the Company shall purchase Notes and, if applicable, such other Indebtedness on a pro rata basis among the Notes and other Indebtedness tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1.00 or integral multiples thereof shall be acquired);
(viii) that Holders whose Notes are purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered; and
(7ix) the circumstances and relevant facts regarding such instructions that Holders must follow in order to tender their Notes. On or before the Net Proceeds Offer. Upon receiving notice of Offer Payment Date, the Company shall (i) accept for payment, on a pro rata basis among the Notes, Notes or portions thereof tendered pursuant to the Net Proceeds Offer, (ii) deposit with the Paying Agent money, in immediately available funds, in an amount sufficient to pay the purchase price of all Notes or portions thereof so tendered and accepted and (iii) deliver to the Paying Agent the Notes so accepted together with an Officers’ Certificate setting forth the Notes or portions thereof tendered to and accepted for payment by the Company. The Paying Agent shall promptly mail or deliver to Holders may elect of Notes so accepted payment in an amount equal to tender their the purchase price, and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes in whole not so accepted shall be promptly mailed or in part in integral multiples delivered by the Company to the Holder thereof. The Paying Agent shall promptly deliver to the Company the balance of $1000 in exchange for cash. any moneys held by the Paying Agent after payment to the Holders of Notes as aforesaid.
(e) To the extent Holders properly tender that the aggregate amount of Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to Company may use any remaining Net Proceeds Offer Amount for general corporate purposes. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero.
(if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. f) The Company shall comply comply, to the extent applicable, with the requirements of Rule 14e-1 under Section 14(e) of the Exchange Act and any other securities laws and or regulations thereunder to (including Rule 14e-1 under the extent such laws and regulations are applicable Exchange Act) 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 thisthe provisions of this Section 4.12, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.12 by virtue thereof.
Appears in 1 contract
Sources: Indenture (Webcraft LLC)
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an make any Asset Sale unless:
unless (1i) the Company or the applicable Restricted 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 sold or otherwise disposed of as determined by the good faith judgment of the Board of Directors evidenced by a Board Resolution and (ii) at least 80% of the consideration received for such sale or other disposition consists of cash or cash equivalents or the assumption of unsubordinated Indebtedness. The Company shall, or shall cause the relevant Restricted Subsidiary to, within 270 days after the date of receipt of the Net Cash Proceeds from an Asset Sale, (i) (A) apply an amount equal to such Net Cash Proceeds to permanently repay unsubordinated Indebtedness of the Company or Indebtedness of any Restricted Subsidiary, in each case owing to a Person other than the Company or any of its Restricted Subsidiaries or (B) invest an equal amount, or the amount not so applied pursuant to clause (A), in property or assets of a nature or type or that are used in a business (or in a company having property and assets of a nature or type, or engaged in a business) similar or related to the nature or type of the property and assets of, or the business of, the Company and its Restricted Subsidiaries existing on the date of such investment (as determined in good faith by the Company’s Board of Directors);
, whose determination shall be conclusive and evidenced by a Board Resolution) and (2ii) at least 75% apply (no later than the end of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from 270-day period referred to above) such Asset Sale shall be in the form of cash or excess Net Cash Equivalents and shall be received at the time of such disposition; provided that, for purposes of this clause (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents Proceeds (to the extent not applied pursuant to clause (i)) as provided in the following paragraphs of this Section 1017. The amount of such Net Cash Proceeds required to be applied (or to be committed to be applied) during such 270-day period referred to above in the preceding sentence and not applied as so required by the end of such period shall constitute "Excess Proceeds". --------------- If, as of the cash or Cash Equivalents receivedfirst day of any calendar month, the aggregate amount of Excess Proceeds not theretofore subject to an Excess Proceeds Offer (as defined below) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Saletotals at least $10 million, the Company shall applymust, or cause such Restricted Subsidiary to applynot later than the 30th Business Day thereafter, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this paragraph (each, a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer (an "Excess Proceeds Offer") to purchase (--------------------- from the “Net Proceeds Offer”) to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum basis an aggregate principal amount of Notes and Pari Passu Indebtedness that may be purchased with equal to the Net Excess Proceeds Offer Amount on such date, at a purchase price equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchasedNotes, plus plus, in each case, accrued and unpaid interest thereonand Liquidated Damages, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration received by purchase (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"Excess ------ Proceeds Payment"), 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. ---------------- The Company may defer the Net shall commence an Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 by mailing 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections notice to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) Trustee and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that each Holder stating: (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Excess Proceeds Offer is being made pursuant to this Section 4.10 1017 and that (subject to the provisions hereof) all Notes validly tendered will be accepted for payment;
payment on a pro rata basis; (2ii) the purchase price (including the amount of accrued interest) and the date of purchase date (which shall be a Business Day no earlier than 30 days nor later than 60 days from the Net date such notice is mailed) (the "Excess ------ Proceeds Offer Payment Date");
; (3iii) that any Note not tendered will continue to --------------------- accrue interest if interest is then accruing;
pursuant to its terms; (4iv) that, unless the Company defaults in making the payment thereforof the Excess Proceeds Payment, any Note accepted for payment pursuant to the Net Excess Proceeds Offer shall cease to accrue interest and Liquidated Damages, if any, on and after the Net Excess Proceeds Offer Payment Date;
; (5v) that Holders electing to have a Note purchased pursuant to a Net the Excess Proceeds Offer will be required to surrender the Note, together with the form entitled “"Option of the Holder to Elect Purchase” " on the reverse side 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 Business Day immediately preceding the Net Excess Proceeds Offer Payment Date;
; (6vi) that Holders will shall be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, the close of business on the second third Business Day immediately preceding the Net Excess Proceeds Offer Payment Date, a telegram, facsimile transmission or letter setting forth the name of the such Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note Notes purchased; and
and (7vii) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice unpurchased portion of the Net Proceeds Offer, Holders may elect to tender their Notes surrendered; provided that each Note purchased and each new Note issued shall be in whole a principal amount of $1,000 or in part in integral multiples of $1000 in exchange for cashthereof. To On the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Excess Proceeds Offer AmountPayment Date, the tendered Notes and Pari Passu Indebredness will be purchased Company shall (i) accept for payment on a pro rata basis Notes or portions thereof tendered pursuant to the Excess Proceeds Offer; (based on amounts tenderedii) deposit with the Paying Agent money sufficient to pay the purchase price of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee all Notes or portions thereof so accepted together with an Officer's Certificate specifying the Notes or portions thereof accepted for payment by the Company. The Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an aggregate amount equal to the Net purchase price, and the Trustee shall upon Company Order promptly authenticate and mail to such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered; provided that each Note purchased and each new Note issued shall be in a principal amount of $1,000 or integral multiples thereof. To the extent that the aggregate principal amount of Notes tendered is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. The Company shall publicly announce the results of the Excess Proceeds Offer Amount (if any)as soon as practicable after the Excess Proceeds Payment Date. A Net Proceeds Offer For purposes of this Section 1017, the Trustee shall remain open for a period of 20 business days or such longer period act as may be required by lawthe Paying Agent. 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 applicable, in connection the event that such Excess Proceeds are received by the Company under this Section 1017 and the Company is required to repurchase Notes as described above. SECTION 1018. Limitation on Issuances of Guarantees of Indebtedness ----------------------------------------------------- by Restricted Subsidiaries. -------------------------- The Company shall not permit any Restricted Subsidiary, directly or indirectly, to Guarantee, assume or in any other manner become liable with respect to any Indebtedness of the repurchase Company, other than Indebtedness under Credit Facilities incurred under clause (iii) of paragraph (b) in Section 1011, unless (i) such Restricted Subsidiary simultaneously executes and delivers a supplemental indenture to this Indenture providing for a Guarantee of the Notes pursuant on terms substantially similar to the Guarantee of such Indebtedness, except that if such Indebtedness is by its express terms subordinated in right of payment to the Notes, any such assumption, Guarantee or other liability of such Restricted Subsidiary with respect to such Indebtedness shall be subordinated in right of payment to such Restricted Subsidiary's assumption, Guarantee or other liability with respect to the Notes substantially to the same extent as such Indebtedness is subordinated to the Notes and (ii) such Restricted Subsidiary waives, and shall not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against the Company or any other Restricted Subsidiary as a Net Proceeds Offer. To the extent that the provisions result of any securities laws payment by such Restricted Subsidiary under its Guarantee. Notwithstanding the foregoing, any Guarantee by a Restricted Subsidiary may provide by its terms that it will be automatically and unconditionally released and discharged upon (i) any sale, exchange or regulations conflict with thistransfer, to any Person not an Affiliate of the Company, of all of the Company's and each Restricted Subsidiary's Capital Stock in, or all or substantially all of the assets of, such Restricted Subsidiary (which sale, exchange or transfer is not prohibited by this Indenture) or (ii) the release or discharge of the guarantee which resulted in the creation of such Guarantee, except a discharge or release by or as a result of payment under such Guarantee.
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:
unless (1i) 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 's Board of Directors);
, (2ii) at least 75% of the consideration received for the assets sold by the Company or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents and shall be is received at the time of such disposition; provided thatprovided, however, that for purposes of this clause (2ii) any securitiesonly, (A) notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary as consideration for an Asset Sale that are converted into cash or Cash Equivalents within 30 days following the consummation of such Asset Sale or (B) the assumption by the purchaser of assets pursuant to an Asset Sale of Indebtedness of the Company or such Restricted Subsidiary (other than Indebtedness that is by its terms subordinate to the extent Notes or any Guarantee) shall, in each case of the immediately preceding clauses (A) and (B), be deemed to be cash or Cash Equivalents receivedat the time of such Asset Sale in an amount equal to, in the case of clause (A), the amount of cash or Cash Equivalents realized on such conversion and, in the case of clause (B), the amount of the Indebtedness so assumed, as reflected on the balance sheet of the Company, and (iii) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon following the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to applySubsidiary, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
either (aA) to apply the Net Cash Proceeds related to such Asset Sale to prepay any Indebtedness that by its terms is not subordinate to the Notes or any Guarantee (and to permanently reduce Indebtedness under the Credit Agreement andcommitments, in the case of any such Indebtedness under any revolving credit facilityif any, effect a permanent reduction in the availability under such revolving credit facility;
with respect thereto), (bB) to make a Permitted Investment or 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 a Related Business (“collectively, "Replacement Assets”); or
") or (cC) a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) . On the 366th 365th day after an Asset Sale Sale, or such earlier date, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply or cause to be applied the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) the next preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such the applicable Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(athe next preceding sentence (or, in the case of a Net Proceeds Offer Trigger Date occurring prior to such 365th day, the aggregate amount of Net Cash Proceeds that the Board of Directors of the Company has determined not to so apply) or the last proviso of this paragraph (each, 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 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basisbasis (and on a pro rata basis with the holders of any other Indebtedness of the Company that is not by its terms subordinate in right of payment to the Notes with similar provisions requiring the Company to offer to purchase such Indebtedness with the proceeds of asset sales), the maximum that principal amount of Notes and Pari Passu such other Indebtedness that may be purchased with equal to the Net Proceeds Offer Amount at a price price, in the case of the Notes, 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 purchasepurchase (subject to the right of Holders of record on a Record Date to receive interest due on an Interest Payment Date that is on or prior to such date of purchase and subject to clause (8) below); 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 4.104.15. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 5.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 5.0 million, shall be applied as required pursuant to this Section 4.10(b)paragraph). In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, which transaction does not constitute a Change of Control, the successor corporation 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 4.10 4.15, and shall comply with the provisions of this Section 4.10 4.15 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) 4.15. Notwithstanding Sections 4.10(a) and (b)the two immediately preceding paragraphs, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections paragraphs to the extent that:
(1i) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
Assets and cash or Cash Equivalents and (2ii) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) paragraph shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b)the two preceding paragraphs. The provisions Notice of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each each Net Proceeds Offer will pursuant to this Section 4.15 shall be mailed or caused to be mailed, by first class mail, by the record Holders as shown on the register of Holders Company within 25 days following the applicable Net Proceeds Offer Trigger DateDate to all Holders, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials reasonably necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice Offer and shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 4.15 and that (subject to the provisions hereof) all Notes properly tendered and not withdrawn will be accepted for payment; provided, however, that if the principal amount of Notes properly tendered and not withdrawn, together with the principal amount of any other Indebtedness properly tendered and not withdrawn, in the Net Proceeds Offer exceeds the Net Proceeds Offer Amount, the Company shall select the Notes and such other Indebtedness, if any, to be purchased on a pro rata basis based on their respective principal amounts (provided that no Notes or other Indebtedness with a principal amount of less than $1,000 shall be purchased in part and Notes and other Indebtedness with a principal amount in excess of $1,000 shall be purchased in integral multiples of $1,000 only);
(2) the purchase Net Proceeds Offer price for the Notes (including the amount of accrued interest, if any) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruinginterest;
(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 on and after the Net Proceeds Offer Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a the Net Proceeds Offer will be required to surrender the such Note, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third business day 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 5:00 p.m., New York City time, the close of business on the second third Business Day preceding prior to the Net Proceeds Offer Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note Notes (or portions thereof) purchased;
(7) that Notes will be purchased in part only in integral multiples of $1,000 and 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; and
(7) 8) if the circumstances and relevant facts regarding such Net Proceeds OfferOffer Payment Date is after a Record Date and prior to the Interest Payment Date to which such Record Date relates, that the accrued interest on the Notes purchased pursuant to the Net Proceeds Offer shall be payable to the Holders of such Notes on the relevant Record Date and no accrued interest will be included in the purchase price of the Notes purchased on the Net Proceeds Offer Date. Upon receiving notice of On or before the Net Proceeds Offer Payment Date, the Company shall, subject to the proration provisions referred to above, (i) accept for payment Notes or portions thereof properly tendered pursuant to the Net Proceeds Offer, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price, including 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 may elect to tender their of Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness so accepted payment in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (purchase price, including accrued interest, if any), thereon and the Trustee shall promptly authenticate and mail to such Holders new Notes equal in principal amount to any unpurchased portion of the Notes surrendered. A Any Notes not so accepted shall be promptly mailed by the Company to the Holder thereof. For purposes of this Section 4.17, the Trustee shall act as the Paying Agent. Any Net Proceeds Offer shall remain open for a period of at least 20 business days Business Days (or such longer period as may be required by law). The Company shall 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 purchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthe provisions of this Section 4.15, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.15 by virtue thereof. Upon completion of a Net Proceeds 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 a Net Proceeds Offer is less than the Net Cash Proceeds Offer Amount, the Company may use any remaining Net Cash Proceeds for general corporate purposes.
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:
unless (1i) 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 's Board of Directors);
) and (2ii) 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 or Cash Equivalents and shall be received at the time of such dispositionEquivalents; provided that, for purposes that the amount of this clause (2x) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets and (y) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 180 days by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will shall be considered “cash” or “Cash Equivalents”; and
(3) upon deemed to be cash for purposes of this provision. Upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 270 days of receipt thereof either:
either (aA) to permanently reduce Indebtedness under the Credit Agreement prepay any Senior Debt and, in the case of any such Indebtedness Senior Debt under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility;
, (bB) 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”"); or
, or (cC) a combination of prepayment and investment permitted by the foregoing clauses (3)(aA) and (3)(bB).
(b) . On the 366th 271st 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 Section 4.10(a) the preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that is an integral multiple of $1,000 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 Section 4.10(a) or the last proviso of this paragraph preceding sentence (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 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 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum that amount of the Notes and Pari Passu Indebtedness that may be purchased with equal to 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 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 4.1040 -33- covenant. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)paragraph). In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a 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 4.10 covenant, and shall comply with the provisions of this Section 4.10 covenant with respect to deemed net cash proceeds from such deemed sale as if it were an Asset Salesale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) covenant. Notwithstanding Sections 4.10(a) and (b)the two immediately preceding paragraphs, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections paragraphs to the extent that:
(1i) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
Assets and (2ii) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) paragraph shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03two preceding paragraphs. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth herein. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding the Net Proceeds Offer Amount, Notes of tendering Holders will be purchased on a pro rata basis (based on amounts tendered). A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by law.
(b) Subject to the deferral of the Net Proceeds Offer Trigger Date contained in the first paragraph of subsection (a) above, each notice of a Net Proceeds Offer pursuant to this IndentureSection 4.05 shall be mailed or caused to be mailed, by first class mail, by the Company not more than 25 days after the Net Proceeds Offer Trigger Date to all Holders at their last registered addresses as of a date within 15 days of the mailing of such notice, with a copy to the Trustee. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice Offer and shall statestate the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 4.05 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment; provided, however, that if the aggregate principal amount of Notes tendered in a Net Proceeds Offer exceeds the aggregate amount of the Net Proceeds Offer, the Company shall select the Notes to be purchased on a pro rata basis based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 or multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be at least 20 and not more than 30 Business Days from the date of mailing of notice of such Net Proceeds Offer Payment Offer, or such longer period as required by law) (the "Proceeds Purchase Date");
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(4) that, unless the Company defaults Issuers default 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 Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to a Net Proceeds Offer will be required to surrender the Note, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third business day Business Day prior to the Net Proceeds Offer Payment Purchase Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on five Business Days prior to the second Business Day preceding the Net Proceeds Offer 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 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 circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice unpurchased portion of the Net Proceeds Offer, Holders may elect to tender their Notes surrendered; provided that each Note purchased and each new Note issued shall be in whole an original principal amount of $1,000 or in part in integral multiples of $1000 in exchange for cash. To thereof; On or before 10:00 a.m. New York Time, on the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer AmountPurchase Date, the Issuers shall (i) accept for payment Notes or portions thereof validly tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal pursuant to the Net Proceeds Offer Amount which are to be purchased in accordance with item (b)(1) above, (ii) deposit with the Paying Agent United States 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 Issuers. A The Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an amount equal to the purchase price plus accrued interest, if any. Any amounts remaining after the purchase of Notes pursuant to a Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required returned by lawthe Trustee to the Company. 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis Section 4.05, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.05 by virtue thereof.
Appears in 1 contract
Sources: Indenture (GPPW 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 the applicable Restricted Subsidiary, as the case may be, 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 sold or otherwise disposed of or issued (as determined in good faith by the Company’s Board of Directors);
(2Directors of the Company or, with respect to assets having a Fair Market Value in excess of $1 million, an Independent Financial Advisor) and at least 7590% of the fair market value (as so determined) of the consideration so received by the Company or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash cash; provided, however, that the amount of (A) any liabilities of the Company or its Subsidiaries (other than liabilities owed to the Company, any of its Subsidiaries or any of their Affiliates) that are assumed by the transferee in any such transaction (as shown on the Company's or such Subsidiary's most recent balance sheet) pursuant to a customary novation agreement that releases the Company and its Subsidiaries from further liability and (B) any Cash Equivalents and shall be received at the time of such disposition; provided that, for purposes of this clause (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (shall both be deemed to be cash, solely to the extent of the cash received in the case of (B), for purposes of this Section 4.18; and (ii) the Net Cash Proceeds received by the Company or Cash Equivalents receivedsuch Subsidiary from such Asset Sale are applied in compliance with Section 4.18(b) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; andhereof.
(3i) upon If the consummation Company or any of its Subsidiaries engages in an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 shall apply the Net Cash Proceeds relating to such Asset Sale as set forth thereof in clauses the following order:
(3)(a)A) first, (3)(b) and (3)(c) of Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or toward the last proviso of this 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 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 such Pari Passu Indebtedness) (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% payment 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 purchasespecified on Exhibit B; provided, however, that any such payment shall result in a permanent reduction in the maximum amount of Indebtedness permitted under Section 4.13(e)(i); 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 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, 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 purchase price. The Company will publicly announce the results of the Net Proceeds Purchase on or as soon as practicable after the 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 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.
(d) 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, or if cash (dividends or interest or other than interest cash payments are received with respect to any such non-cash consideration)thereto, then such conversion or disposition cash 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. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this covenant and shall be applied in accordance with Section 4.10.
(c4.18(b) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate as if received in an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown occurring on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable date any such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer cash is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisreceived.
Appears in 1 contract
Sources: Indenture (Trism Inc /De/)
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of 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 's Board of Directors);
, (2ii) 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 or Cash Equivalents and shall be is received at the time of such disposition; provided thatprovided, for purposes however, that the amount of this clause (2A) any securities, liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or the notes thereto) of the Company or any Restricted Subsidiary that are assumed by the transferee in such Asset Sale and from which the Company or such Restricted Subsidiary is released and (B) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will shall be considered “cash” or “Cash Equivalents”deemed to be cash for the purposes of this Section 4.15; and
and (3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 360 days of receipt thereof either:
either (aA) to permanently reduce repay any Indebtedness ranking at least pari passu with the Notes (including amounts under the Bank Credit Agreement andFacilities), in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility;
(bB) 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 shall 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”"); or
, or (cC) a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) . On the 366th 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)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) the next preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), an amount equal to such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, 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 Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “"Net Proceeds Offer Payment Date”") not less than 30 45 nor more than 45 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to 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-consideration other than cash consideration or Cash Equivalents received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this covenant. A transfer of assets by the Company to a Wholly Owned Restricted Subsidiary or by a Restricted Subsidiary to the Company or to a Wholly Owned Restricted Subsidiary will not be deemed to be an Asset Sale. A transaction that is subject to and made in compliance with Section 4.105.01 shall not be subject to the application of this Section 4.15. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million 5,000,000 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 $10.0 million5,000,000, shall be applied as required pursuant to this Section 4.10(b)paragraph). In Notwithstanding 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b)immediately preceding paragraph, the Company and its Restricted Subsidiaries will shall be permitted to consummate an Asset Sale without complying with such Sections paragraph to the extent that:
(1i) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
Assets and (2ii) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) paragraph shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03two preceding paragraphs. Each Net Proceeds Offer will shall be mailed to the record Holders as shown on the register of Holders within 25 30 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 1,000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will of tendering Holders shall be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any)unless otherwise required by law or any applicable exchange regulations. A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations or any applicable exchange regulations conflict with thisthis Section 4.15, the Company shall comply with the applicable securities laws and regulations and exchange regulations and shall not be deemed to have breached its obligations under this Section 4.15 by virtue thereof.
Appears in 1 contract
Sources: Indenture (Penhall Co)
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate in the ordinary course of business or otherwise, sell, lease, convey, transfer or otherwise dispose of any of the Company’s, or of any such Subsidiary’s, assets (including Capital Stock and warrants, options or other rights to acquire Capital Stock) (an “Asset Sale”), other than pursuant to a Permitted Asset Sale unless:
or a Limited Permitted Asset Sale, unless (1A) the Company receives, or the applicable Restricted Subsidiaryrelevant Subsidiary receives, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (including as to the value of the assets sold or otherwise disposed of (all non-cash consideration), as determined in good faith by the Company’s Board of Directors);
(2) at least 75% , of the consideration received by assets subject to such Asset Sale, and (B) within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted relevant Subsidiary, as the case may be, from shall apply all such Asset Sale shall be in the form of cash or Cash Equivalents and shall be received at the time of such disposition; provided that, for purposes of this clause (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof eitherto:
(a) to permanently reduce Indebtedness under the Credit Agreement and, in the case of any such Indebtedness repay or prepay indebtedness under any revolving credit facility, effect Credit Facility secured by a permanent reduction in lien on assets of the availability under such revolving credit facilityCompany or any Subsidiary;
(b) to make an investment acquire all or substantially all of the assets of, or any Capital Stock of, a person primarily engaged in properties and assets a Permitted Business; provided, 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 case of the acquisition of Capital Stock of any Person, such Person is or becomes a Subsidiary of the Company and its Restricted will be subject to all restrictions described in this Fourth Supplemental Indenture as applying to Subsidiaries as of the Company existing on the Issue Date or in businesses reasonably related thereto (“Replacement Assets”); orDate;
(c) make a capital expenditure;
(d) acquire other assets that are not classified as current assets under IFRS and that are used or useful in a Permitted Business (including, without limitation, Vessels and Related Assets);
(e) repay unsecured senior indebtedness of the Company or any Subsidiary (including any redemption, repurchase, retirement or other acquisition of the Notes); and
(f) any combination of prepayment and investment the transactions permitted by the foregoing clauses (3)(aa) through (e), provided, that any sale, assignment, conveyance, transfer or lease of all or substantially all of the Company’s properties and assets to any Person or Persons (3)(b)whether in a single transaction or a series of related transactions) will be governed by the provisions described under Section 3.03 of this Fourth Supplemental Indenture and Article 5 of the Indenture, as amended and supplemented by Section 9.02 of this Fourth Supplemental Indenture, and not by the provisions of this Section 6.05.
A (b1) 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 binding contract to apply the Net Cash Proceeds relating to such Asset Sale as set forth in accordance with clauses (3)(a), b) through (3)(bd) and (3)(c) above shall toll the 365-day period in respect of Section 4.10(a) (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 or (2) determination by the Company to apply all or a portion of such Net Proceeds toward the exercise of an outstanding purchase option contract shall toll the 365-day period in respect of such Net Proceeds or portion thereof, in each case, for a period not to exceed 365 days or, in the case of a binding contract to acquire one or more Vessels, until the end of the construction or delivery period specified in such binding contract, as the same may be extended, from the expiration of the aforementioned 365-day period, provided, that such binding contract and such determination by the Company, in each case, shall be treated as a permitted in clauses application of Net Proceeds from the date of such binding contract or determination until and only until the earlier of (3)(a), (3)(bx) the date on which such acquisition or expenditure is consummated and (3)(cy) (i) in the case of Section 4.10(aa construction contract or any exercised purchase option contract, the date of expiration or termination of such construction contract or exercised purchase option contract and (ii) in all other cases, the 365th day following the expiration of the aforementioned 365-day period. Pending the final application of any Net Proceeds, the Company or any of its Subsidiaries may apply Net Proceeds to the last proviso repayment or reduction of outstanding indebtedness or otherwise invest the Net Proceeds in any manner that is not prohibited by the Indenture, as amended and supplemented by this Fourth Supplemental Indenture. If a Limited Permitted Asset Sale occurs at any time, the Company must, within 30 days of such Limited Permitted Asset Sale, make pursuant to Article V of this paragraph Fourth Supplemental Indenture an offer to purchase Notes having a principal amount equal to the Excess Proceeds of such Limited Permitted Asset Sale. The price that the Company will be required to pay (each, a the “Net Proceeds Offer AmountLimited Permitted Asset Sale Purchase Price”) 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 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 such Pari Passu Indebtedness) (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 100101.0% of the principal amount of the Notes and Pari Passu Indebtedness to be purchased, plus accrued and unpaid interest thereonto, if anybut excluding, the Limited Permitted Asset Sale Purchase Date (as defined below), subject to the date right of purchase; provided, however, that if at any time any non-cash consideration received by Holders of record on the Company or any Restricted Subsidiary relevant Record Date to receive interest due on the relevant Interest Payment Date. If the offer to purchase is for less than all of the Company, as the case may be, outstanding Notes and Notes 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. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the principal amount in excess of $10.0 million, shall be applied as required the purchase amount are tendered and not withdrawn pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b)offer, the Company and its Restricted Subsidiaries will be permitted to consummate purchase Notes having an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least aggregate principal amount equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) basis, with adjustments so that only notes in an aggregate multiples of $25.00 principal amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may will be required by lawpurchased. The “Limited Permitted Asset Sale Purchase Date” will be a date specified by the Company shall comply with that is not less than 20 nor more than 35 calendar days following the requirements date of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to Limited Permitted Asset Sale notice as described in Article V of this Fourth Supplemental Indenture. Any Notes purchased by the extent such laws and regulations are applicable in connection with the repurchase of Notes Company pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thissuch offer to purchase will be paid for in cash.
Appears in 1 contract
Sources: Fourth Supplemental Indenture (Scorpio Tankers 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:
unless (1i) 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 's Board of DirectorsManagers);
; (2ii) 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 or cash, Cash Equivalents and or Foreign Cash Equivalents (provided that the amount of 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 (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets shall be deemed to be cash for purposes of this provision) and is received at the time of such disposition; provided that, for purposes of this clause and (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
either (aA) to permanently reduce prepay any Senior Debt, Guarantor Senior Debt or Indebtedness under the Credit Agreement of a Restricted Subsidiary that is not a Guarantor 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;
, (bB) to either (x) make an investment in or expenditures for properties and assets (including Capital Stock of any entity) that replace the properties and assets that were the subject of such Asset Sale or in properties and assets (including Capital StockStock of any entity) 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”)") or (y) the acquisition of all of the capital stock or assets of any Person or division conducting a business reasonably related to that of -74- the Company or its Subsidiaries; or
PROVIDED that Net Cash Proceeds in excess of $30 million in the aggregate since June 30, 1999 from Asset Sales involving assets of the Company or a Guarantor (cother than the Capital Stock of a Foreign Subsidiary) shall only be reinvested in (x) assets which will be owned by the Company or a Guarantor and not constituting an Investment or (y) the capital stock of a Person that becomes a Guarantor or (C) a combination of prepayment prepayment, repurchase and investment permitted by the foregoing clauses (3)(aiii) (A), (iii) (B) and (3)(biii) (C).
(b) . On the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors Managers 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)(aiii) (A), (3)(biii) (B) and (3)(ciii) (C) of Section 4.10(a) the next preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii) (A), (3)(biii) (B) and (3)(ciii) (C) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, 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 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 all holders of such Pari Passu Indebtedness) (and holders Indebtedness that is PARI PASSU with the Notes containing provisions requiring offers to purchase with the proceeds of any such Pari Passu Indebtedness) sales of assets, on a pro rata PRO RATA basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to 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; providedPROVIDED, howeverHOWEVER, 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 4.104.15. The Company may defer the shall not be required to make a Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 30 million resulting from one or more Asset Sales (Sales, at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b))paragraph, PROVIDED, HOWEVER, that the first $30 million of Net Proceeds Offer Amount need not be applied as required pursuant to this paragraph. -75- 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 5.01 and as a Change of Controlresult thereof the Company is no longer an obligor on the Notes, 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 4.10 4.15, and shall comply with the provisions of this Section 4.10 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 4.104.15.
(cb) Notwithstanding Sections 4.10(a) and (b)the two immediately preceding paragraphs, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections paragraphs to the extent that:
(1i) at least 7580% of the consideration for such Asset Sale constitutes Replacement Assets; and
Assets and (2ii) such Asset Sale is for fair market value; provided PROVIDED, HOWEVER, that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) paragraph shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(athe two preceding paragraphs.
(c) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable Subject to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transactiondeferral right set forth in the final proviso of Section 4.15(a), the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 each notice of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each a Net Proceeds Offer will pursuant to this Section 4.15 shall be mailed mailed, by first-class mail, by the Company to the record Holders as shown on the register of Holders within 25 Notes at their last registered address not more than 30 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice Offer and shall statestate the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and 4.15 of the Indenture, that (subject to the provisions hereof) all Notes tendered will be accepted for payment; PROVIDED, HOWEVER, that if the aggregate principal amount of Notes tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of the Net Proceeds Offer, the Company shall select the Notes to be purchased on a PRO RATA basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 or EU1,000, as applicable, or multiples thereof shall be purchased) and that the Net Proceeds Offer shall remain open for a period of 20 -76- Business Days or such longer periods as may be required by law;
(2) the purchase price (including the amount of accrued interest) and the purchase date Net Proceeds Offer Payment Date (which shall be not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Payment DateTrigger Date and which shall be at least five Business Days after the Trustee receives notice thereof from the Company);
(3) that any Note not tendered will continue to accrue interest if interest is then accruinginterest;
(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 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 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 5:00 p.m., New York City time, on the second Business Day preceding 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 Notes the Holder 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 circumstances unpurchased portion of the Note surrendered; PROVIDED, HOWEVER, that each Note purchased and relevant facts regarding such each new Note issued shall be in an original principal amount of $1,000, EU1,000 or integral multiples thereof. On or before the Net Proceeds Offer. Upon receiving notice Offer Payment Date, the Company shall (i) accept for payment Notes or portions thereof (in integral multiples of $1,000 and EU1,000) validly tendered pursuant to the Net Proceeds Offer, (ii) deposit with the Paying Agent in accordance with Section 2.14 U.S. Legal Tender (in the case of Dollar Notes) and/or euros (in the case of Euro Notes) sufficient to pay the purchase price plus accrued and unpaid 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. Upon receipt by the Paying Agent of the monies specified in clause (ii) above and a copy of the Officers' Certificate specified in clause (iii) above, the Paying Agent shall promptly mail to the Holders may elect of Notes so accepted payment in an amount equal to tender their the purchase price plus accrued and unpaid interest, if any, out of the funds deposited with the Paying Agent in accordance with the preceding sentence. The Trustee shall promptly authenticate and mail to such Holders new Notes equal in whole or in part in integral multiples principal amount to any unpurchased portion of $1000 in exchange the Notes surrendered. Upon the payment of the purchase price for cashthe Notes accepted for purchase, the Trustee shall return the Notes purchased to the Company for cancellation. Any monies remaining after the purchase of Notes pursuant to a Net Proceeds Offer shall be returned within three Business Days by the Trustee to the Company except with respect to monies owed as obligations to the Trustee pursuant to Article Seven. For purposes of this Section 4.15, the Trustee shall act as the Paying Agent. To the extent Holders properly tender the amount of Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the tendered pursuant to any Net Proceeds Offer Amountis less than the amount of Net Cash Proceeds 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 Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the such Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by lawreset to zero. The Company shall 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 rule, 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 and regulations conflict with thisthe provisions of this Indenture relating to a Net Proceeds Offer, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations relating to such Net Proceeds Offer by virtue thereof.
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:
unless (1a) 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 DirectorsDirectors of the Company);
, (2b) 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 71 -63- or Cash Equivalents and shall be is received at the time of such disposition; provided thatprovided, however, that this condition shall not apply to a transaction whereby the Company or any Restricted Subsidiary effects an Asset Sale by the exchange of assets or property for Productive Assets or to the sale or other disposition of all or any portion of the Company's East Mill assets located in Antioch, California, provided, further, that the amount of (A) any liabilities of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes) that are assumed by the transferee of any such assets shall be deemed to be cash for purposes of this clause provision and (2B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will shall be considered “cash” or “Cash Equivalents”; and
deemed to be cash for purposes of this provision, and (3c) upon the consummation of an Asset Sale, the Company shall (i) apply, or cause such Restricted Subsidiary to apply, the such Net Cash Proceeds relating to of such Asset Sale within 365 270 days of receipt thereof either:
the consummation of such Asset Sale (aA) to permanently reduce Indebtedness under prepay indebtedness ranking pari passu with the Credit Agreement andNotes, senior indebtedness of a Subsidiary Guarantor or debt of a Restricted Subsidiary that is not a Subsidiary Guarantor or, in the case of any such Indebtedness debt under any a revolving credit facility, effect a permanent reduction in the committed availability under any such revolving credit facility;
facility or (bB) 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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 Notes and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of documentation governing 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 (indebtedness and holders of such Pari Passu Indebtedness) (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 indebtedness ranking pari passu with the Net Proceeds Offer Amount Notes, 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, thereon to the date of purchasepurchase pursuant to an offer to purchase made by the Company as set forth below (a "Net Proceeds Offer"), or (ii)(A) commit, or cause such Restricted Subsidiary to commit (such commitments to include amounts anticipated to be expended pursuant to the Company's capital investment plan (x) as adopted by the Board of Directors of the Company and (y) evidenced by the filing of an Officers' Certificate with the Trustee stating that the total amount of the Net Cash Proceeds of such Asset Sale is less than the aggregate amount contemplated to be expended pursuant to such capital investment plan within 24 months of the consummation of such Asset Sale) within 270 days of the consummation of such Asset Sale, to apply the Net Cash Proceeds of such Asset Sale to reinvest in Productive Assets and (B) apply, or cause such Restricted Subsidiary to apply, pursuant to such commitment (which includes amounts actually expended under the capital investment plan authorized by the Board of Directors of the Company), such Net Cash Proceeds of such Asset Sale within 24 months of the consummation of such Asset Sale; provided that if any commitment under this clause (ii) is terminated or rescinded after the 225th day after the consummation of such Asset Sale, the Company or such Restricted Subsidiary, as the case may be, shall have 45 days after such termination or rescission to (1) apply such Net Cash Proceeds pursuant to clause (c)(i) above (a "Reapplication Determination") or (2) to commit, or cause such Restricted Subsidiary to commit, to apply the Net Cash Proceeds of such Asset Sale to reinvest in Productive Assets; provided that in any such case, such proceeds must be applied pursuant to clause (c)(i) above or such commitment, as the case may be, no later than 24 months after the consummation of such Asset Sale or (iii) any combination of the foregoing; provided, howeverfurther, 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)cash, 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. The clause (c) above; and provided, further, that the Company may defer the making a Net Proceeds Offer until there is an the aggregate unutilized Net Cash Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall to be applied as required pursuant to this Section 4.10(b))equals or exceeds $10 million. In Pending the event final application 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 4.10 and shall comply with the provisions of this Section 4.10 with respect to any such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of Net Cash Proceeds the Company or its such Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b)Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03if any. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 270 days following the consummation of the Asset Sale that requires the Company to make a Net Proceeds Offer Trigger Date(or within 30 days after a Reapplication Determination, if applicable), with a copy to the Trustee, will specify the purchase date (which will be no earlier than 30 days nor later than 45 days from the date such notice is mailed) and shall comply with the procedures set forth in this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding the aggregate amount of the Net Proceeds Offer, Notes of tendering Holders will be repurchased on a pro rata basis (based upon the principal amount tendered). To the extent that the aggregate amount of Notes tendered pursuant to a Net Proceeds Offer is less than the aggregate amount of the Net Proceeds Offer, the Company may use such excess Net Proceeds Offer amount for general corporate purposes or for any other purpose not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the amount of the Net Proceeds Offer 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 law. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice Offer and shall statestate the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 4.16 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment; provided, however, that if the aggregate principal amount of Notes tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of the Net Proceeds Offer, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 or multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be no earlier than 30 days nor later than 45 days from the Net date such notice is mailed, other than as may be required by law) (the "Proceeds Offer Payment Purchase Date");
(3) that any Note not tendered will continue to accrue interest if interest is then accruinginterest;
(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 or accrete interest after the Net Proceeds Offer Payment Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to a Net Proceeds Offer will be required to surrender the Note, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third business day Business Day prior to the Net Proceeds Offer Payment Purchase Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on two Business Days prior to the second Business Day preceding the Net Proceeds Offer 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 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 circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice unpurchased portion of the Net Notes surrendered. On or before the Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer AmountPurchase Date, the Company shall (i) accept for payment Notes or portions thereof tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal pursuant to the Net Proceeds Offer Amount that are to be purchased in accordance with item (if any)1) above, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price 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. A The Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an amount equal to the purchase price. For purposes of this Section 4.16, the Trustee shall act as the Paying Agent. Any amounts remaining after the purchase of Notes pursuant to a Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required returned by lawthe Trustee to the Company. 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis Section 4.16, the Company shall comply with the applicable 75 -67- securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.16 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 Asset Sale unless:
unless (1i) 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 's Board of Directors);
, (2ii) 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 or Cash Equivalents and shall be is received at the time of such disposition; provided that, for purposes of this clause and (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 180 days of receipt thereof either:
either (aA) to permanently reduce repay any Indebtedness under secured by the Credit Agreement and, assets involved in such Asset Sale together with a concomitant permanent reduction in the amount of such Indebtedness (including a permanent reduction in the committed amounts therefor in the case of any such Indebtedness under any revolving credit facilityfacility so repaid), effect a permanent reduction in (B) to repay any of the availability under such revolving credit facility;
Company's 12 3/4% Senior Notes due 2001 which were not exchanged for Notes on the Series A/B Issue Date (bC) 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 Series A/B Issue Date or in businesses reasonably related thereto (“"Replacement Assets”"); or
, or (cD) a combination of prepayment repayment and investment permitted by the foregoing clauses (3)(aiii)(A), (iii)(B) and (3)(biii)(C).
; provided, however, that the 75% limitation set forth in clause (bii) of this paragraph shall not apply to any proposed Asset Sale for which an independent certified accounting firm shall certify to the Board of Directors of the Company and the Trustee that the after-tax cash portion of the consideration to be received by the Company or such Restricted Subsidiary in such proposed Asset Sale is equal to or greater than what the net after-tax cash proceeds would have been had such proposed Asset Sale complied with the 75% limitation set forth in clause (ii) of this paragraph and provided, further, that for purposes of this covenant, Cash Equivalents shall include any unsubordinated Indebtedness of the Company or any Restricted Subsidiary (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) that are assumed by the transferee and for which the Company or such Restricted Subsidiary is reasonably indemnified in connection with the relevant Asset Sale. On the 366th 181st 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)(aiii)(A), (3)(biii)(B), (iii)(C) and (3)(ciii)(D) of Section 4.10(a) the next preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B), (iii)(C) and (3)(ciii)(D) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, 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 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 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum basis that amount of Notes and Pari Passu Indebtedness that may be purchased with (including Additional Series D Senior Notes) equal to 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 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 4.10covenant. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million 5,000,000 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 $10.0 million5,000,000, shall be applied as required pursuant to this Section 4.10(b)paragraph). In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, which transaction does not constitute a Change 5.01 of Controlthis Indenture, 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 4.10 covenant, and shall comply with the provisions of this Section 4.10 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 4.10.
(c) covenant. Notwithstanding Sections 4.10(a) and (b)the two immediately preceding paragraphs, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections paragraphs to the extent that:
(1i) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
Assets and (2ii) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) paragraph shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and the two preceding paragraphs.
(b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable Subject to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 deferral of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger DateDate contained in subsection (a) above, each notice of a Net Proceeds Offer pursuant to this Section 4.16 shall be mailed or caused to be mailed, by first class mail, by the Company not more than 25 days after the Net Proceeds Offer Trigger Date to all Holders at their last registered addresses as of a date within 15 days of the mailing of such notice, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice Offer and shall statestate the following terms:
(1i) that the Net Proceeds Offer is being made pursuant to this Section 4.10 4.16 and that (subject to the provisions hereof) all Notes tendered (including any Additional Series D Senior Notes) tendered, in whole or in part, will be accepted for payment; provided, however, that if the aggregate principal amount of Notes (including any Additional Series D Senior Notes) tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of the Net Proceeds Offer, the Company shall select the Notes (including any Additional Series D Senior Notes) to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 or multiples thereof shall be purchased);
(2ii) the purchase price (including the amount of accrued interest) and the purchase date (which shall be 20 Business Days from the date of mailing of notice of such Net Proceeds Offer Payment Offer, or such longer period as required by law) (the "Proceeds Purchase Date");
(3iii) that any Note not tendered will continue to accrue interest if interest is then accruinginterest;
(4iv) 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 Purchase Date;
(5v) that Holders electing to have a Note purchased pursuant to a Net Proceeds Offer will be required to surrender the Note, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third business day Business Day prior to the Net Proceeds Offer Payment Purchase Date;
(6vi) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on five Business Days prior to the second Business Day preceding the Net Proceeds Offer 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 his election to have such Note purchased; and
(7vii) that Holders whose Notes are purchased only in part will be issued new Notes in a principal amount equal to the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice unpurchased portion of the Net Proceeds Offer, Holders may elect to tender their Notes surrendered; provided that each Note purchased and each new Note issued shall be in whole an original principal amount of $1,000 or in part in integral multiples of $1000 in exchange for cash. To thereof; On or before the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer AmountPurchase Date, the Company shall (i) accept for payment Notes (including any Additional Series D Senior Notes) or portions thereof tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal pursuant to the Net Proceeds Offer Amount which are to be purchased in accordance with item (b)(l) 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. A The Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an amount equal to the purchase price plus accrued interest, if any. For purposes of this Section 4.16, the Trustee shall act as the Paying Agent. Any amounts remaining after the purchase of Notes pursuant to a Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required returned by lawthe Trustee to the Company. 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis Section 4.16, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 4.16 by virtue thereof.
Appears in 1 contract
Sources: Indenture (Coinmach Laundry 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:
unless (1i) 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 Fair Market Value of the assets sold or otherwise disposed of (as determined in good faith by the Company’s 's Board of Directors);
Directors or if the Fair Market Value of such assets exceeds $20.0 million, the Company shall receive from an investment banking firm of national standing a written opinion in customary form as to the fairness, to the Company, of such Asset Sale) and (2ii) at least 7580% 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 or Cash Equivalents Marketable Securities and shall be is received at the time of such disposition; provided that, for purposes of this clause (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon . Upon the consummation of an Asset Sale, the Company shall may apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 180 days of receipt thereof either:
either (aA) to permanently reduce prepay any Bank Indebtedness under the Credit Agreement and, in the case of any such Bank Indebtedness under any revolving credit facility, to effect a permanent reduction in the availability under such revolving credit facility;
, (bB) to make an investment reinvest in properties Wireless Cable Related Assets (provided that, on and assets that replace after the properties and assets that were payment by the subject of such Asset Sale or in properties and assets (including Capital Stock) that will be used in the business Company of the Company and its Restricted Subsidiaries as existing on the Issue Date Additional Consent Payments, such Wireless Cable Related Assets must be Permitted Assets) or in businesses reasonably related thereto (“Replacement Assets”); or
(cC) to a combination of prepayment and investment permitted by the foregoing clauses (3)(aA) and (3)(bB).
(b) . On the 366th 181st 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)(aA), (3)(bB) and or (3)(cC) of Section 4.10(a) the preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aA), (3)(bB) and or (3)(cC) of Section 4.10(a) or the last proviso of this paragraph preceding sentence (each, 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 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum PRO RATA basis that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to 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; providedPROVIDED, howeverHOWEVER, 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 4.10. The Company covenant.
(b) Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $5.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may defer 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 until there is an aggregate unutilized Trigger Date relating to such initial Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more all Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). In the event of the transfer of substantially all (but not all) of the property and assets of by the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01aggregates at least $5.0 million, at which transaction does not constitute a Change of Control, the successor corporation shall be deemed to have sold the properties and assets of time the Company and its Restricted Subsidiaries not shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so transferred for purposes deferred to make a Net Proceeds Offer (the first date the aggregate of this Section 4.10 and shall comply with the provisions of this Section 4.10 with respect all such deferred Net Proceeds Offer Amounts is equal 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 $5.0 million or its Restricted Subsidiaries deemed to be sold more shall be deemed to be a Net Cash Proceeds for purposes of this Section 4.10Offer Trigger Date).
(c) Notwithstanding Sections 4.10(athe two immediately preceding paragraphs (a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections paragraphs to the extent that:
(1i) at least 7595% of the consideration for such Asset Sale Sale, other than cash consideration, constitutes Replacement assets used in the business of the Company and its Subsidiaries on the date of such transaction (provided that, on and after the payment by the Company of the Additional Consent Payments, such assets must be Permitted Assets; and
), (2ii) such Asset Sale is for fair market valueFair Market Value (as determined in good faith by the Company's Board of Directors or if the Fair Market Value of such assets exceeds $20.0 million, the Company shall receive from an investment banking firm of national standing a written opinion in customary form as to the fairness, to the Company, of such Asset Sale) and (iii) the assets acquired in such an Asset Sale have historically generated revenues in an amount at least equal to (1) the revenues attributable to the assets disposed of in such Asset Sale, multiplied by (2) a fraction, the numerator of which is the amount of consideration other than cash consideration received in such Asset Sale, and the denominator of which is the total amount of consideration received in such Asset Sale (provided that the requirements of this clause (iii) shall cease to be of any effect simultaneously with the payment of the Additional Consent Payments); provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries Subsidiaries, as the case may be, in connection with any an Asset Sale permitted to be consummated under this Section 4.10(c) paragraph that does not constitute assets to be used in the operations of the Company or its Subsidiaries shall constitute Net Cash Proceeds which are subject to the provisions of Sections 4.10(a) and (b)the two preceding paragraphs. The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that In addition, notwithstanding the two immediately preceding paragraphs, the Company will be permitted (i) to consummate the Supplemental Indenture is executed and Wireless One Transaction without complying with such paragraphs, (ii) to sell the Call Markets to Wireless One without complying with such paragraphs, (iii) to sell any or all of the assets acquired in effect concurrently the AWS Transaction, the CableMaxx Transaction or the TechniVision Transaction on or prior to the first anniversary of the consummation of each such Transaction without complying with such paragraphs, (iv) to sell any or all of the assets acquired by way of an Investment permitted by clause (xv) of the second paragraph of Section 4.07 on or prior to the first anniversary of the consummation of such Inversion Transaction; acquisition without complying with such paragraphs and (iiv) immediately following such Inversion Transactionto sell, in a single transaction or a series of transactions, assets for up to $25.0 million of non-cash consideration (provided, that simultaneously with the payment by the Company of the Additional Consent Payments, the Company shall apply $25.0 million amount referred to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook in this clause (v) shall be no less favorable computed only with respect to sales occurring after November 30, 1996), provided, in the case of clauses (iii), (iv) and (v) that the Company than immediately prior to receives consideration at the time of such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is Asset Sale at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to Fair Market Value of the assets sold or otherwise disposed of (as determined in good faith by the Company's Board of Directors or if the Fair Market Value of such Inversion Transaction; and (iv) immediately following such Inversion Transactionassets exceeds $20.0 million, the Company is able shall receive from an investment banking firm of national standing a written opinion in customary form as to incur at least $1.00 the fairness, to the Company, of additional Indebtedness such Asset Sale).
(other than Permitted Indebtednessd) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed within 25 days following the Net Proceeds Offer Trigger Date to the record Holders as shown on the register of Holders Holders, at their last registered addresses as of a date within 25 15 days following of the Net Proceeds Offer Trigger Datemailing of such notice, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice Offer and shall statestate the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 4.12 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment; provided, however, that if the aggregate principal amount of Notes tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of the Net Proceeds Offer, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 or multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be 20 Business Days from the date of mailing of notice of such Net Proceeds Offer Payment Offer, or such longer period as required by law) (the "Proceeds Purchase Date");
(3) that any Note not tendered will continue to accrue interest if interest is then accruinginterest;
(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 Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to a Net Proceeds Offer will be required to surrender the Note, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third business day Business Day prior to the Net Proceeds Offer Payment Purchase Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding prior to the Net Proceeds Offer Purchase Date, a facsimile transmission or letter written letter, signature guaranteed, setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) that Holders whose Notes are purchased only in part will be issued new Notes in a principal amount equal to the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice unpurchased portion of the Net Proceeds OfferNotes surrendered; PROVIDED, Holders may elect to tender their Notes HOWEVER, that each Note purchased and each new Note issued shall be in whole an original principal amount of $1,000 or in part in integral multiples of $1000 in exchange for cashthereof. To On or before the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer AmountPurchase Date, the Company shall (i) accept for payment Notes or portions thereof tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal pursuant to the Net Proceeds Offer Amount which are to be purchased in accordance with item (b)(1) above, (ii) deposit with the Paying Agent, in accordance with Section 2.14, U.S. Legal Tender sufficient to pay the purchase price plus accrued interest, if any), of all Notes to be purchased, (iii) deliver to the Trustee Notes so accepted together with an Officers' Certificate stating the Notes or portions thereof being purchased by the Company and (iv) deliver to the Paying Agent an Officers' Certificate specifying the Notes or portions thereof being purchased by the Company and the payees of the purchase price. A Net Proceeds Offer The Paying Agent shall remain open for a period promptly mail to the Holders of 20 business days or such longer period Notes so accepted payment in an amount equal to the purchase price plus accrued interest, if any. For purposes of this Section 4.12, the Trustee shall act as may be required by lawthe Paying Agent. The Company shall 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 thisthe foregoing provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the foregoing provisions of this Indenture by virtue thereof.
ARTICLE 2 MISCELLANEOUS SECTION
Appears in 1 contract
Sources: Supplemental Indenture (Heartland Wireless Communications 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 any Asset Sale Sale, unless:
(1) the consideration received by the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale Subsidiary is 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);of; and
(2) at least 75% of the consideration received by consists of cash, Temporary Cash Investments or the assumption of Indebtedness of the Company (other than Indebtedness that is subordinated in right of payment to the Notes) or a Restricted Subsidiary (other than Indebtedness that is subordinated in right of payment to the Subsidiary Guarantee of such Restricted Subsidiary) and unconditional release of the Company or the Restricted Subsidiary, as Subsidiary from all liability on the case may be, from such Asset Sale shall be in Indebtedness assumed.
(b) Within 12 months after the form date of cash or Cash Equivalents and shall be received at the time consummation of such disposition; provided that, for purposes of this clause (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or shall cause such the relevant Restricted Subsidiary to:
(A) apply an amount equal to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(b) to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale or to repay Indebtedness under Credit Agreements and permanently reduce the commitments 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”)respect thereof; or
(cB) a combination of prepayment and investment permitted by invest an equal amount, or the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Cash Proceeds of such Asset Sale not so applied pursuant to clause (A) (or enter into a definitive agreement committing to so invest within such 12-month period, which investment shall be consummated within 12 months after the date of such agreement ), in (i) property or assets (other than current assets) of a nature or type or that have not been applied are used in a business similar or related to the nature or type of the property and assets of, or the business of, the Company and the Restricted Subsidiaries existing on the date of such investment (as determined in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) (a “Related Business”) or before (ii) the Capital Stock of a Person primarily engaged in a Related Business that becomes a Restricted Subsidiary as a result of such investment; and
(C) apply such Net Cash Proceeds Offer Trigger Date as permitted in clauses (3)(a), to the extent not applied pursuant to clause (3)(b) and (3)(c) of Section 4.10(aA) or the last proviso (B)) as provided in Section 4.10(c). The amount of this paragraph (each, a “such Net Cash Proceeds Offer Amount”) shall required to be applied (or to be committed to be applied) during such 12-month period as set forth in the preceding sentence and not applied as so required by the end of such period shall constitute “Excess Proceeds.”
(c) If, as of the first day of any calendar month, the aggregate amount of Excess Proceeds not theretofore subject to an Offer to Purchase pursuant to this Section 4.10 totals at least $20 million, the Company or must commence, not later than the fifteenth Business Day of such Restricted Subsidiary month, and consummate an Offer to make Purchase from the Holders on a pro rata basis an offer to purchase (the “Net Proceeds Offer”) to all Holders aggregate principal amount of Notes and, to the extent permitted or required by the terms thereof, any other 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum amount of Notes and Pari Passu Company’s Indebtedness that may be purchased is pari passu in right of payment with the Net Notes, equal to the Excess Proceeds Offer Amount on such date, at a purchase price equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchased, plus accrued and unpaid interest thereonsuch other Indebtedness, if anyapplicable, to on the date of purchase; providedrelevant Payment Date, 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 beplus, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash each case, accrued interest (other than interest received with respect to any such non-cash consideration)if any) to, 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. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which timebut excluding, the entire unutilized Net Payment Date. If any Excess Proceeds remain after consummation of an Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b)Purchase, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with may use such Sections to the extent that:
(1) at least 75% of the consideration Excess Proceeds for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration purpose not constituting Replacement Assets received otherwise prohibited by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in response to the Holders shall contain all instructions and materials necessary such Offer to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including Purchase exceeds the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the HolderExcess Proceeds, the principal amount of Trustee will select the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election other pari passu Indebtedness to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate basis. Upon completion of the Offer to Purchase, the amount equal of Excess Proceeds will be reset to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thiszero.
Appears in 1 contract
Sources: Indenture (PAETEC Holding Corp.)
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of 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 's Board of Directors);
, (2ii) at least 75% 70 percent 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 or Cash Equivalents and shall be is received at the time of such disposition; provided that, for purposes of this clause and (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
either (aA) to permanently reduce Indebtedness under the Credit Agreement prepay any Senior Debt or Guarantor Senior Debt and, in the case of any such Indebtedness Senior Debt or Guarantor Senior Debt under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility;
, (bB) 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”"); or
, or (cC) a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) . 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)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) the next preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, 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 Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “"Net Proceeds Offer Payment Date”") not less than 30 days nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata PRO RATA basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to the Net Proceeds Offer Amount at a price equal to 100% 100 percent 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; providedPROVIDED, howeverHOWEVER, 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 4.10covenant. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)paragraph). In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, which transaction does not constitute a Change 5.01 of Controlthis Indenture, 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 4.10 covenant, and shall comply with the provisions of this Section 4.10 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 4.10.
(c) covenant. Notwithstanding Sections 4.10(a) and (b)the two immediately preceding paragraphs, the Company and its Restricted Subsidiaries will shall be permitted to consummate an Asset Sale without complying with such Sections paragraphs to the extent that:
(1i) at least 75% 80 percent of the consideration for such Asset Sale constitutes Replacement Assets; and
Assets and (2ii) such Asset Sale is for fair market value; provided PROVIDED that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) paragraph shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03two preceding paragraphs. Each Net Proceeds Offer will shall be mailed to the record Holders as shown on the register of Holders within 25 30 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 1,000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness of tendering Holders will be purchased on a pro rata PRO RATA basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis 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.
Appears in 1 contract
Sources: Indenture (Air Rental Supply 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:
unless (1i) 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 's Board of Directors);
, (2ii) 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 or Cash Equivalents and shall be is received at the time of such disposition; provided that, for purposes disposition (the fair market value of this clause Replacement Assets (2as defined below) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary Subsidiary, as the case may be, from such transferee that are converted by the Company or such Restricted Subsidiary into Asset Sale shall be considered cash or Cash Equivalents for purposes of this covenant); and (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 270 days of receipt thereof either:
either (aA) to permanently reduce Indebtedness under the Credit Agreement prepay any Senior Debt and, in the case of any such Indebtedness Senior Debt under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility;
, (bB) 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 any businesses reasonably which are similar or related thereto to the contract packaging and manufacturing businesses (“Replacement Assets”"REPLACEMENT ASSETS"); or
, or (cC) a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) . On the 366th 271st 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)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) the next preceding sentence (each, a “Net Proceeds Offer Trigger Date”"NET PROCEEDS OFFER TRIGGER DATE"), an amount equal to such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, each a “Net Proceeds Offer Amount”"NET PROCEEDS OFFER AMOUNT") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”"NET PROCEEDS OFFER") to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”"NET PROCEEDS OFFER PAYMENT DATE") not less than 30 nor more than within 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata PRO RATA basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to 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; providedPROVIDED, howeverHOWEVER, that if at any time any non-cash consideration other than Cash or Cash Equivalents 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 4.10covenant. A transfer of assets by the Company to a Wholly-Owned Restricted Subsidiary or by a Restricted Subsidiary to the Company or to another Wholly-Owned Restricted Subsidiary will not be deemed to be an 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 $10.0 million 5,000,000 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 $10.0 million5,000,000, shall be applied as required pursuant to this Section 4.10(bparagraph)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this
Appears in 1 contract
Sources: Indenture (Aerosol Services Co 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 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);
(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 or Cash Equivalents and shall be received at the time of such disposition; provided that, for . For purposes of this clause (2) each of the following shall be deemed to be cash:
(a) any liabilities, as shown on the most recent consolidated balance sheet of the Company or any Restricted Subsidiary (or would be shown on such consolidated balance sheet as of the date of such Asset Sale), other than contingent liabilities and liabilities that are by their terms subordinated to the notes or any Guarantee, or any Guarantees of Indebtedness of Persons other than the Company or any Restricted Subsidiary, that are assumed by the person acquiring such assets to the extent that the Company and its Restricted Subsidiaries have no further liability with respect to such liabilities;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 90 days after receipt will be considered “cash” or “Cash Equivalents”receipt; and
(c) any Designated Non-Cash Consideration received by the Company or its Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding in the aggregate, not to exceed the greater of (i) $35 million and (ii) 1.0% of the Company’s Consolidated Total Assets, in each case at the time of receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration measured at the time received and without giving effect to subsequent changes in value;
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness (x) under the any Credit Agreement Facility and, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility (provided, however that, if there shall not be any term loan Indebtedness outstanding under any Credit Facility, in the case of such Indebtedness under any revolving credit facility such prepayment shall not be required to effect a permanent reduction in the availability under such revolving credit facility) or (y) of a Subsidiary that does not guarantee the Notes;
(b) to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale or in properties and assets (including Capital Stock) that will be used in the business of the Company and its Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably related thereto (“Replacement Assets”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 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 such Pari Passu Indebtedness) (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 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 4.10. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 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 $10.0 25.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 entity shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed sent to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Supplemental Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 1,000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness Indebtedness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis Section 4.10, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue thereof.
Appears in 1 contract
Limitation on Asset Sales. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, consummate cause, make or suffer to exist an Asset Sale unless:
Sale, unless (1x) the Company or the applicable its 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);
the assets sold or otherwise disposed of and (2y) at least 75% of the consideration therefor received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents and shall be received at the time of such dispositionEquivalents; provided that, for purposes that the amount of this clause (2a) any securitiesliabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Securities) that are assumed by the transferee of any such assets without recourse to the Company or any of the Restricted Subsidiaries, (b) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 180 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon following the consummation closing of an such 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 either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 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 such Pari Passu Indebtedness) (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 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 4.10. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in connection such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed 15% of Total 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), and (d) any assets received in exchange for assets related to a Similar Business of comparable market value, in the good faith determination of, the Board of Directors of the Company, shall be deemed to be cash for purposes of this provision. Within 365 days after Holdings' or any Restricted Subsidiary's receipt of the Net Proceeds of any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Sale, the Company or such Restricted Subsidiary may apply the Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that from such Asset Sale, at its option, (i) to permanently reduce Obligations under the Supplemental Indenture is executed New Credit Facility (and in effect concurrently to correspondingly reduce commitments with respect thereto) or other Indebtedness of a Restricted Subsidiary or Pari Passu Indebtedness (provided that if the consummation Company shall so reduce Obligations under Pari Passu Indebtedness, it will equally and ratably reduce Obligations under the Securities if the Securities are then redeemable or, if the Securities may not be then redeemed, the Issuers shall make an Offer to Purchase to all Holders to purchase at 100% of such Inversion Transaction; the Accreted Value thereof the amount of Securities that would otherwise be redeemed), (ii) immediately following to an investment in any one or more businesses, capital expenditures or acquisitions of other assets in each case, used or useful in a Similar Business and/or (iii) to make an investment in properties or assets that replace the properties and assets that are the subject of such Inversion TransactionAsset Sale. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from the Asset Sale that are not invested as provided and within the time period set forth in the first sentence of this paragraph (it being understood that any portion of such Net Proceeds used to make an offer to purchase Securities, as described in clause (i) above, shall apply to S&P and ▇▇▇▇▇’▇ be deemed to have its debt rating and outlook updated and been invested whether or not such updated debt rating and outlook shall offer is accepted) will be no less favorable deemed to constitute "Excess Proceeds." When the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transactionaggregate amount of Excess Proceeds exceeds $15.0 million, the Company’s Consolidated Fixed Charge Coverage Ratio Issuers shall make an Offer to Purchase to all Holders of Securities to purchase the maximum principal amount at maturity of Securities that is an integral multiple of $1,000 that may be purchased out of the Excess Proceeds at least an offer price in cash in an amount equal to 100% of the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; Accreted Value thereof on, plus accrued and (iv) immediately following such Inversion Transactionunpaid interest, if any, to, the Company is able to incur at least $1.00 date fixed for the closing of additional Indebtedness (other than Permitted Indebtedness) such offer, in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply accordance with the procedures set forth in this Indenturebelow. The notice Issuers will commence an Offer to the Holders shall contain all instructions and materials necessary Purchase with respect to enable such Holders to tender Notes pursuant to the Net Excess Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 within ten Business Days after the Net date that Excess Proceeds Offer Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a Net Proceeds Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of exceed $1000 in exchange for cash15.0 million. To the extent Holders properly tender Notes and holders that the aggregate Accreted Value of Pari Passu Indebtedness properly tender Securities tendered pursuant to such Pari Passu Indebtedness in an amount exceeding Offer to Purchase is less than the Net Proceeds Offer AmountExcess Proceeds, the tendered Notes and Pari Passu Indebredness will Company may use any remaining Excess Proceeds for general corporate or partnership purposes. Upon completion of any such Offer to Purchase, the amount of Excess Proceeds shall be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by lawreset at zero. The Company shall Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and or regulations are applicable in connection with the repurchase of Notes the Securities pursuant to a Net Proceeds Offersuch an Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with thisthe 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. On or prior to the Purchase Date specified in the Offer to Purchase, the Issuers shall (i) accept for payment all Securities validly tendered pursuant to the Offer, (ii) deposit with the Paying Agent or, if an Issuer is acting as its own Paying Agent, segregate and hold in trust as provided in Section 2.04, money sufficient to pay the Purchase Price of all Securities or portions thereof so accepted and (iii) deliver or cause to be delivered to the Trustee for cancellation all Securities so accepted together with an Officers' Certificate stating the Securities or portions thereof accepted for payment by the Issuers. The Paying Agent (or an Issuer, if so acting) shall promptly mail or deliver to Holders of Securities so accepted, payment in an amount equal to the Purchase Price for such Securities, and the Trustee shall promptly authenticate and mail or deliver to each Holder of Securities a new Security or Securities equal in principal amount at maturity to any unpurchased portion of the Security surrendered as requested by the Holder. Any Security not accepted for payment shall be promptly mailed or delivered by the Issuers to the Holder thereof. The Issuers shall publicly announce the results of the Offer on or as soon as practicable after the Purchase Date.
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 Asset Sale unless:
(1including the sale of any of the Capital Stock of any Restricted Subsidiary) providing for Net Proceeds in excess of $2,500,000 unless at least 75% of the Net Proceeds from such Asset Sale are applied (in any manner otherwise permitted by this Indenture) to one or more of the following purposes in such combination as the Company shall elect: (i) an investment in another asset or business in the applicable same line of business as, or a line of business similar to that of, the line of business of the Company and its Restricted Subsidiary, as the case may be, receives consideration Subsidiaries at the time of the Asset Sale; provided that such investment occurs on or prior to the 365th day following the date of such Asset Sale at least equal (the "Asset Sale Disposition Date"), (ii) to reimburse the Company or its Subsidiaries for expenditures made, and costs incurred, to repair, rebuild, replace or restore property subject to loss, damage or taking to the fair market value extent that the Net Proceeds consist of insurance proceeds received on account of such loss, damage or taking, (iii) the purchase, redemption or other prepayment or repayment of outstanding Senior Indebtedness of the assets sold Company or otherwise disposed Indebtedness of (as determined in good faith by the Company’s Board of Directors);'s Restricted Subsidiaries on or prior to the 365th day following the Asset Sale Disposition Date or (iv) an Offer expiring on or prior to the Purchase Date.
(2b) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate an Asset Sale unless at least 75% of the consideration thereof received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash, cash equivalents or Cash Equivalents and shall be received at the time of such dispositionmarketable securities; provided that, solely for purposes of this clause calculating such 75% of the consideration, the amount of (2i) any securitiesliabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto, excluding contingent liabilities and trade payables), of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Senior Notes) that are assumed by the transferee of any such assets and (ii) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly, but in no event more than 30 days after receipt, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash received), shall be deemed to be cash and cash equivalents for purposes of this provision. Any Net Proceeds from any Asset Sale that are not applied or Cash Equivalents receivedinvested as provided in Section 4.14(a) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; andshall constitute "Excess Proceeds."
(3c) upon When the consummation aggregate amount of Excess Proceeds exceeds $10,000,000 (such date being an "Asset SaleSale Trigger Date"), 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 either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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, of Senior Notes 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, purchase the maximum principal amount of the Senior Notes and Pari Passu Indebtedness then outstanding that may be purchased with out of Excess Proceeds that remain upon completion of the Net Excess Proceeds Offer Amount offer required under the Series A/B Indenture, at a an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchased, thereof plus any accrued and unpaid interest thereonand Liquidated Damages, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied Purchase Date 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 $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:.
(1d) To the extent that any Excess Proceeds remain after completion of an Offer, the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted Company may use such remaining amount for payment;general corporate purposes.
(2e) If the purchase price (including aggregate principal amount of Senior Notes surrendered by Holders thereof exceeds the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the HolderExcess Proceeds, the principal amount of Trustee shall select the Senior Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis basis.
(based on amounts tenderedf) in Upon completion of an aggregate Asset Sale Offer, the amount equal of Excess Proceeds shall be reset at zero.
(g) Notwithstanding the foregoing, to the extent that any or all of the Net Proceeds Offer Amount (if any). A of an Asset Sale is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as so affected will not be required to be applied pursuant to Section 4.14, but may be required by lawretained for so long, but only for so long, as the applicable local law prohibits repatriation to the United States. The Company shall comply with promptly take all reasonable actions required by the requirements applicable local law to permit such repatriation, and once such repatriation 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 affected Net Proceeds Offer. To is not prohibited under applicable local law, such repatriation will be immediately effected and such repatriated Net Proceeds will be applied in the extent that manner set forth above as if such Asset Sale have occurred on the provisions date of any securities laws or regulations conflict with thisrepatriation.
Appears in 1 contract
Sources: Indenture (Motors & Gears Inc)
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 unless:
Sale, unless (1i) the Company or the applicable such Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets sold or otherwise disposed of and (as determined in good faith by the Company’s Board of Directors);
(2ii) at least 75% of the consideration (excluding contingent liabilities assumed by the transferee of such assets) received by consists of cash or Temporary Cash Investments or the assumption of Senior Indebtedness of the Company or the Restricted Subsidiarya Subsidiary Guarantor, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents and shall be received at the time of such disposition; provided that, for purposes of this clause (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (is irrevocably released from all liability under such Indebtedness. In the event and to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, that the Company shall apply, or cause such any of its Restricted Subsidiary to apply, Subsidiaries receive the Net Cash Proceeds relating from one or more Asset Sales, then the Company shall or shall cause the relevant Restricted Subsidiary to (i) within 12 months after the date Net Cash Proceeds so received (A) apply an amount equal to such Asset Sale within 365 days of receipt thereof either:
(a) excess Net Cash Proceeds to permanently reduce repay (which is accompanied by a corresponding permanent commitment reduction) Senior Indebtedness under of the Credit Agreement andCompany or a Subsidiary Guarantor or (B) invest an equal amount, or the amount not so applied pursuant to clause (A) (or enter into a definitive agreement committing to so invest within 12 months after the date of such agreement), in the case property or assets (other than current assets) of any such Indebtedness under any revolving credit facility, effect a permanent reduction nature or type or that are used in the availability under such revolving credit facility;
a business (b) to make an investment or in properties a company having property and assets that replace of a nature or type, or engaged in a business) similar or related to the properties nature or type of the property and assets that were the subject of such Asset Sale of, or in properties and assets (including Capital Stock) that will be used in the business of of, the Company and its Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably related thereto (“Replacement Assets”); or
(c) a combination date of prepayment and such investment permitted by the foregoing clauses (3)(a) and (3)(b).
ii) apply (b) On no later than the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors end of the Company or of 12-month period referred to in clause (i) above such Restricted Subsidiary determines not to apply the excess Net Cash Proceeds relating (to the extent not applied pursuant to clause (i)) as provided in the following paragraph of this Section 4.14. The amount of such Asset Sale excess Net Cash Proceeds required to be applied (or to be committed to be applied) during such 12-month period as set forth in clauses clause (3)(a), (3)(b) and (3)(ci) of Section 4.10(a) (eachthe preceding sentence and not applied as so required by the end of such period shall constitute "Excess Proceeds." If, a “Net Proceeds Offer Trigger Date”)as of the first day of any calendar month, such the aggregate amount of Net Cash Excess Proceeds that have not been applied on or before such Net Proceeds theretofore subject to an Offer Trigger Date as permitted in clauses (3)(a)to Purchase pursuant to this Section 4.14 totals at least $5,000,000, (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this paragraph (each, a “Net Proceeds Offer Amount”) shall be applied by the Company or must commence, not later than the fifteenth Business Day of such Restricted Subsidiary month, an Offer to make an offer Purchase to purchase (the “Net Proceeds Offer”) to all Holders of the Notes and, to the extent required by the terms of any Pari Passu Indebtedness, an Offer to Purchase to all holders of such Pari Passu Indebtedness, 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum principal amount of Notes and any such Pari Passu Indebtedness that may be purchased with out of the Net Proceeds Offer Amount Excess Proceeds, at a an offer price equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchasedthereof, plus plus, in each case, accrued and unpaid interest thereon, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this 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 $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisAdditional Interest,
Appears in 1 contract
Sources: Indenture (Cke Restaurants Inc)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company or the such applicable Restricted 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 Fair Market Value of the assets sold or otherwise disposed of of; (as determined in good faith by the Company’s Board of Directors);
(2ii) at least 75not less than 80% of the consideration received by the Company or the such applicable Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of (a) cash or Cash Equivalents or (b) Replacement Assets, and shall be in each case set forth in clauses (a) and (b), is received at the time of such sale or other disposition; provided that, for purposes PROVIDED that the amount of this clause (2x) any securities, notes Indebtedness (other than subordinated Indebtedness) of the Company or other obligations any such applicable Restricted Subsidiary that is actually assumed by the transferee in such Asset Sale and from which the Company and its Restricted Subsidiaries are fully and unconditionally released and (y) any securities received by the Company or any such applicable Restricted Subsidiary from such transferee that which are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within five Business Days of such Asset Sale (to the extent of the cash or Cash Equivalents received) within 30 days after receipt ), will be considered “cash” or “Cash Equivalents”deemed to be cash for purposes of this clause (ii); and
and (3iii) upon the consummation of an Asset Sale, Sale Proceeds received by the Company shall apply, or cause such Restricted Subsidiary to applySubsidiary, as the Net Cash Proceeds relating to case may be, are applied, at the option of the Company or such Asset Sale within 365 days of receipt thereof either:
Restricted Subsidiary, (a) to permanently reduce Indebtedness prepay, repay or purchase indebtedness under the New Credit Agreement and, in Facilities or any other secured Indebtedness of the case of any Company or such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility;
Restricted Subsidiary; or (b) to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale are used or in properties and assets (including Capital Stock) that will be used useful in the business of the Company and or its Restricted Subsidiaries or in businesses reasonably similar to or ancillary to the business of the Company or its Restricted Subsidiaries as existing on conducted at the Issue Date time of such Asset Sale; PROVIDED that (1) such investment occurs or (2) the Company or any such Restricted Subsidiary enters into contractual commitments to so apply such Asset Sale Proceeds, subject only to customary conditions (other than the obtaining of financing), in businesses reasonably related thereto (“Replacement Assets”)each case, within 365 days following the receipt of such Asset Sale Proceeds; or
or (c) a combination of prepayment and investment permitted by if on such 365th day, the foregoing clauses (3)(a) and (3)(b).
(b) On the 366th day after an Available Asset Sale or such earlier dateProceeds exceed $15,000,000, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not shall apply an amount equal to apply the Net Cash Proceeds relating to such Available Asset Sale as set forth in clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this paragraph (each, a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase repurchase the Notes (the “Net Proceeds Offer”) to all Holders and, to the extent required by the terms of any Pari Passu Indebtednessat its option, to all holders an offer to repurchase other equal and ratable Indebtedness; PROVIDED that the stated maturity date of such Pari Passu IndebtednessIndebtedness is no later than the stated maturity date of the Notes), 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 such Pari Passu Indebtedness) (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 purchase price in cash equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchased, thereof plus accrued and unpaid interest thereoninterest, if any, to the purchase date of purchase; provided(an "EXCESS PROCEEDS OFFER"). If an Excess Proceeds Offer is not fully subscribed, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of may retain and use for general corporate purposes the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash portion (other than interest received with respect to any such non-cash consideration)portion, 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. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). In the event of the transfer of substantially all (but not alla "DEFICIENCY") of the property and assets Available Asset Sale Proceeds not required to repurchase Notes. Upon completion of any Excess Proceeds Offer, the amount of Available Asset Sale Proceeds shall be reset to zero; PROVIDED that the amount of the Company and its Restricted Subsidiaries 25% Available Asset Sale Proceeds (as an entirety to a Person in a transaction permitted under Section 5.01, which transaction does not defined below) shall 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 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were an Available 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 Sale Proceeds for purposes of this Section 4.10the first Excess Proceeds Offer that is made after the fifth anniversary of the Issue Date (the "FIFTH ANNIVERSARY").
(b) Notwithstanding the foregoing, in no event shall the Company use Available Asset Sale Proceeds to purchase more than 25% of the original aggregate principal amount of the Notes on or prior to the Fifth Anniversary. If the aggregate Available Asset Sale Proceeds (disregarding any resetting to zero as described in paragraph (a) above) resulting from Asset Sales occurring on or prior to the Fifth Anniversary, less any Deficiencies resulting from any Excess Proceeds Offers made by the Company on or prior to such date, exceed 25% of the original aggregate principal amount of the Notes (such excess being the "25% AVAILABLE ASSET SALE PROCEEDS"), then the Company shall make an Excess Proceeds Offer in accordance with the foregoing provisions (i) promptly after the Fifth Anniversary, in the event the amount of the 25% Available Asset Sale Proceeds exceeds $15,000,000 or (ii) at such time as the amount of the 25% Available Asset Sale Proceeds together with Available Asset Sale Proceeds realized after the Fifth Anniversary exceeds $15,000,000, in the event the amount of the 25% Available Asset Sale Proceeds is less than $15,000,000.
(c) Notwithstanding Sections 4.10(a) and (b), If the Company and its Restricted Subsidiaries will be permitted is required to consummate make an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Excess Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion TransactionOffer, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable (i) notify the Trustee thereof at least five Business Days prior to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, commencement of the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; Excess Proceeds Offer and (ivii) immediately following such Inversion Transactionsend by first-class mail, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders postage prepaid, within 25 30 days following the Net Proceeds Offer Trigger Datedate specified in clause (iii)(c) of paragraph (a) above, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders Trustee and to each Holder, at the address appearing in the register maintained by the Registrar, stating the information set forth below. The Excess Proceeds Offer shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to remain open for a period of 20 Business Days following its commencement (the Net "OFFER PERIOD"). The notice, which shall govern the terms of the Excess Proceeds Offer. Such notice , shall state:
(1) that the Net Excess Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered length of time the Excess Proceeds Offer will be accepted for paymentremain open;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be a Business Day no earlier than 30 days nor later than 60 days from the Net Proceeds Offer Payment Datedate such notice is mailed);
(3) that any Note not tendered or accepted for payment will continue to accrue interest if interest is then accruinginterest;
(4) that, unless the Company defaults in making a payment thereforpursuant to the Excess Proceeds Offer, any Note Notes accepted for payment pursuant to the Net Excess Proceeds Offer shall cease to accrue interest after the Net Proceeds expiration of the Offer Payment DatePeriod;
(5) that Holders electing to have a Note purchased pursuant to a Net any 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 Business Day preceding the Net Proceeds Offer Payment Datepurchase date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding expiration of the Net Proceeds Offer DatePeriod, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(7) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Available Asset Sale Proceeds, the Company or the Trustee shall select the Notes to be purchased on a PRO RATA basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of US$1,000, or integral multiples thereof, shall be purchased);
(8) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered; PROVIDED that each Note purchased and each such new Note issued shall be in an original principal amount in denominations of US$1,000 and integral multiples thereof; and
(79) the circumstances and relevant facts regarding such Net calculations used in determining the amount of Available Asset Sale Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal applied to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period purchase of 20 business days or such longer period as may be required by lawNotes. 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 a Net an Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis Section 4.10, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue thereof.
Appears in 1 contract
Sources: Indenture (Norske Skog Canada LTD)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an make any Asset Sale unless:
(1including by operation of or as a result of an LLC Division) unless (i) the Company or the applicable such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (determined by the Company in good faith as of the date the Company enters into a definitive agreement relating to such Asset Sale) of the assets or other property sold or otherwise disposed of in the Asset Sale and (as determined ii) except (x) in good faith by the Company’s Board case of Directors);
a Permitted Asset Swap or (2y) if such Asset Sale has a purchase price of less than $100.0 million, at least 75% of the such consideration received by the Company or the Restricted Subsidiary, as the case may be, from for such Asset Sale shall be Sale, together with all other Asset Sales since the Escrow Release Date (on a cumulative basis), is in the form of cash or Cash Equivalents and shall be received at or assets used or useful in the time business of such dispositionthe Company; provided that, that for purposes of this clause Section 4.14 “cash” shall include (2A) the amount of any liabilities (other than liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) of the Company or such Restricted Subsidiary (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee in connection with such assets or other property in such Asset Sale (and excluding any liabilities that are incurred in connection with or in anticipation of such Asset Sale), but only to the extent that there is no further recourse to the Company or any of its Subsidiaries with respect to such liabilities; (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 Company or such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within 180 days following the closing of such Asset Sale; and (C) within 30 days after any Designated Noncash Consideration having an aggregate fair market value that, when taken together with all other Designated Noncash Consideration previously received and then outstanding, does not exceed the greater of (x) $120.0 million and (y) 20.0% of L8QA Consolidated EBITDA at the time of the receipt will be considered “cash” of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value). Notwithstanding clause (ii) of this Section 4.14(a), (a) all or “Cash Equivalents”; and
(3) upon a portion of the consummation consideration in connection with any such Asset Sale may consist of all or substantially all of the assets or a majority of the Voting Stock of an existing television or radio business, franchise or station or digital business (whether existing as a separate entity, subsidiary, division, unit or otherwise) or any other Similar Business and (b) the Company may, and may permit its Subsidiaries to, issue shares of Capital Stock in a Qualified Joint Venture to a Qualified Joint Venture Partner without regard to clause (ii) of this Section 4.14(a); provided that, in the case of any of (a) or (b) of this sentence after giving effect to any such Asset Sale and related acquisition of assets or Voting Stock, (x) no Default or Event of Default shall have occurred or be continuing; and (y) the Net Proceeds of any such Asset Sale, if any, are applied in accordance with this Section 4.14.
(b) Within 450 days after the Company shall apply, or cause such Restricted Subsidiary to apply, later of (A) the date of any Asset Sale and (B) the receipt of any Net Cash Proceeds relating to of such Asset Sale within 365 days of receipt thereof either(the “Asset Sale Proceeds Application Period”), the Company or such Restricted Subsidiary, at its option, may elect to apply or cause to be applied the Net Proceeds from such Asset Sale:
(ai) to permanently reduce repay: (A) Obligations under Secured Indebtedness under (other than Indebtedness owed to the Credit Agreement Company or a Restricted Subsidiary), and, in the case of revolving obligations (other than obligations in respect of any such Indebtedness asset-based credit facility), to correspondingly reduce commitments with respect thereto and/or (B) Obligations under any unsecured Indebtedness of the Company or any Restricted Subsidiary that ranks pari passu in right of payment to the Notes (“Pari Passu Indebtedness”) and, in the case of revolving obligations (other than obligations in respect of any asset-based credit facility), effect a permanent reduction to correspondingly reduce commitments with respect thereto; provided that in the availability case of any repayment pursuant to this clause (B), the Company or such Restricted Subsidiary will either (I) reduce Obligations under the Notes on a pro rata basis with such revolving credit facilityother ▇▇▇▇ ▇▇▇▇▇ Indebtedness by, at its option, (x) redeeming Notes pursuant to Section 3.01 or (y) purchasing Notes through open-market purchases or in privately negotiated transactions at market prices (which may be below par), or (II) make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes (which may be on a ratable basis with such other Pari Passu Indebtedness) for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon up to the principal amount of Notes to be repurchased; provided that to the extent the Company or any Restricted Subsidiary makes an offer to redeem, prepay, repay or purchase any Obligations pursuant to the foregoing clause (i) at a price of no less than 100% of the principal amount thereof, to the extent the relevant creditors do not accept such offering, the Company and the Restricted Subsidiaries will be deemed to have applied an amount of the Net Proceeds equal to such amount not so accepted in such offer, and such amount shall not increase the amount of Excess Proceeds (and such amount shall instead constitute Declined Proceeds);
(bii) 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 invest in the business of the Company and its Restricted Subsidiaries as existing on the Issue Date or Subsidiaries, including any investment in businesses reasonably related thereto (“Replacement Additional Assets”); or;
(ciii) to make capital expenditures in or that are used or useful in a combination Similar Business or to make capital expenditures for maintenance, repair or improvement of prepayment and investment permitted by existing assets in accordance with the terms of this Indenture; provided that the Company may elect to deem Investments or capital expenditures within the scope of the foregoing clauses (3)(aii) and or (3)(biii).
(b) On the 366th day after an Asset Sale or such earlier date, if any, as applicable, that occur prior to the Board of Directors receipt of the Company Net Proceeds to have been made in accordance with such clauses (ii) or (iii) so long as such deemed Investments or capital expenditures shall have been made no earlier than the earlier of such Restricted Subsidiary determines not to apply (x) the Net Cash Proceeds execution of a definitive agreement relating to such Asset Sale as set forth in clauses (3)(a), (3)(b) and (3)(cy) the consummation of Section 4.10(asuch Asset Sale; and/or
(iv) (each, any combination of the foregoing; provided that a “binding commitment or letter of intent shall be treated as a permitted application of the Net Proceeds Offer Trigger Date”), from the date of such aggregate amount commitment or letter of Net Cash Proceeds intent so long as the Company or a Restricted Subsidiary enters into such commitment with the good faith expectation that have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses will be applied to satisfy such commitment within 180 days of the expiration of the Asset Sale Proceeds Application Period (3)(a), (3)(ban “Acceptable Commitment”) and (3)(c) of Section 4.10(a) or the last proviso of this paragraph (each, a “such Net Proceeds Offer Amountare actually applied substantially in such manner within 180 days of the expiration of the Asset Sale Proceeds Application Period (the period from the consummation of the Asset Sale to such date, the “First Commitment Application Period”) or, in the event any Acceptable Commitment is later terminated or cancelled prior to the application of such Net Proceeds or such Net Proceeds are not so applied within such First Commitment Application Period, then such Net Proceeds shall be applied by constitute Excess Proceeds unless the Company or such Restricted Subsidiary reasonably intends to make enter into another Acceptable Commitment prior to the expiration of the First Commitment Application Period (a “Second Commitment”) and such Net Proceeds are actually applied substantially in such manner within 180 days of the date of entering into the Second Commitment; provided, further, that if any Second Commitment is cancelled or terminated for any reason before such Net Proceeds are applied or if the date of such Second Commitment is not prior to the date of the expiration of the First Commitment Application Period then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from an Asset Sale not applied or invested as provided and within the time period set forth in Section 4.14(b) will be deemed to constitute “Excess Proceeds”; provided that any amount of Net Proceeds offered to Holders of the Notes pursuant to clause (i)(B)(II) of Section 4.14(b) shall not be deemed to be Excess Proceeds without regard to whether such offer is accepted by any Holders. In no event later than 20 Business Days after any date (a “Asset Sale Offer Trigger Date”) that the aggregate amount of Excess Proceeds exceeds $75.0 million, the Company shall commence an offer to purchase (the an “Net Proceeds Asset Sale Offer”) to all Holders of Notes and, to the extent if required or permitted by the terms of any Pari Passu IndebtednessIndebtedness (including, for the avoidance of doubt, the Secured Notes and the Existing Notes), to all the holders of such Pari Passu IndebtednessIndebtedness as selected by the Company, 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, to purchase the maximum aggregate principal amount (or accreted value, as applicable) of the Notes and such Pari Passu Indebtedness that is, with respect to the Notes only, in an amount equal to $1,000, or an integral multiple of $1,000 in excess thereof, that may be purchased with out of the Net Excess Proceeds Offer Amount at a price an offer price, in the case of the Notes only, in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchasedthereof (or accreted value thereof, if less), plus accrued and unpaid interest thereoninterest, if any, to to, but excluding, the date fixed for the closing of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may besuch offer, 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. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture, 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 agreement(s) governing such Pari Passu Indebtedness. The notice Company may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the Holders time period that may be required by this Indenture with respect to all or a part of the available Net Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”). 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 an Asset Sale Offer is less than the amount offered in the Asset Sale Offer (or in the case of an Advance Offer, the Advance Portion), the Company may use any remaining Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) (“Declined Proceeds”) 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 Company shall contain all instructions purchase the Notes (subject to applicable DTC procedures as to Global Notes) and materials 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 Asset Sale Offer (or Advance Offer), the amount of Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) that resulted in the requirement to enable make an Asset Sale Offer shall be reset to zero (regardless of whether there are any remaining Excess Proceeds (or Advance Portion) upon such Holders completion). Upon consummation or expiration of any Asset Sale Offer (or Advance Offer), any remaining Net Proceeds shall not be deemed Excess Proceeds and the Company may use such Net Proceeds for any purpose not otherwise prohibited under this Indenture.
(d) An Asset Sale Offer or Advance Offer may be made at the same time as consents are solicited with respect to tender Notes pursuant an amendment, supplement or waiver of this Indenture, Notes, and/or Guarantees (but the Asset Sale Offer or Advance Offer may not condition tenders on the delivery of such consents).
(e) Pending the final application of an amount equal to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that 4.14, the holder of such Net Proceeds may apply any Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility (subject to including under the provisions hereofSenior Secured Credit Agreement) all Notes tendered will be accepted for payment;or otherwise invest such Net Proceeds in any manner not prohibited by this Indenture.
(2f) In connection with an Asset Sale Offer or Advance Offer, the Company shall deliver to each Holder of Notes a notice stating: (i) that the Company is offering to purchase price the aggregate principal amount of Notes required to be offered for purchase pursuant to this Section 4.14 (including and identifying other Indebtedness, if any, that is participating pro rata in such offer) on the date of purchase (the “Asset Sale Offer Purchase Date”), which shall be a Business Day, specified in such notice, that is not earlier than 30 days or later than 60 days from the date such notice is mailed, (ii) the amount of accrued interest) and unpaid interest as of the purchase date Asset Sale Offer Purchase Date, (which shall be the Net Proceeds Offer Payment Date);
(3iii) that any Note not tendered will continue to accrue interest if interest is then accruing;
interest, (4iv) that, unless the Company defaults in making the payment thereforof the purchase price for the Notes payable pursuant to such offer, any Note Notes accepted for payment pursuant to the Net Proceeds Offer such offer shall cease to accrue interest after the Net Proceeds Asset Sale Offer Payment Purchase Date;, (v) the procedures, consistent with this Indenture, to be followed by a holder of Notes in order to accept such offer or to withdraw such acceptance, and (vi) such other information as may be required by this Indenture and applicable laws and regulations.
(5g) that Holders electing On the Asset Sale Offer Purchase Date, the Company will (i) apply all Excess Proceeds to have the purchase of the aggregate principal amount of Notes and, if applicable, Pari Passu Indebtedness (on a Note purchased pro rata basis, if applicable) offered for purchase pursuant to a Net Proceeds this Section 4.14 (the “Asset Sale Offer will be required Amount”) or, if less than the Asset Sale Offer Amount of Notes (and, if applicable, Pari Passu Indebtedness) has been so validly tendered, all Notes or Pari Passu Indebtedness validly tendered in response to surrender the Notesuch offer, (ii) deposit 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 aggregate purchase price of all Notes or portions thereof accepted for payment and any accrued and unpaid interest on such Notes as of the notice prior Asset Sale Offer Purchase Date, and (iii) deliver or cause to be delivered to the close of business on the third business day prior Trustee all Notes tendered pursuant to the Net Proceeds Asset Sale Offer Payment Date;
(6) that Holders will be entitled or Advance Offer. If less than all Notes tendered pursuant to withdraw their election if the Paying Agent receivesAsset Sale Offer or Advance Offer are accepted for payment by the Company for any reason consistent with this Indenture, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount selection of the Notes to be purchased by the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) Company shall be in compliance with the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice requirements of the Net Proceeds Offerprincipal national securities exchange, Holders may elect if any, on which the Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot or by such method as the Trustee shall deem fair and appropriate or otherwise in accordance with the procedures of DTC; provided that Notes accepted for payment in part shall only be purchased in integral multiples of $1,000. The Paying Agent shall promptly deliver to tender their each Holder of Notes or portions thereof accepted for payment an amount equal to the purchase price for such Notes plus any accrued and unpaid interest thereon, and the Trustee shall promptly authenticate and mail to such holder of Notes accepted for payment in part a new Note equal in principal amount to any unpurchased portion of the Notes, and any Note not accepted for payment in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will shall be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal promptly returned to the Net Proceeds holder of such Note. On and after an Asset Sale Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisPurchase Date, interest will cease
Appears in 1 contract
Sources: Indenture (E.W. SCRIPPS Co)
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:
unless (1i) the Company or the applicable Restricted Subsidiary, as the case may be, such Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets sold included in such Asset Sale, (ii) immediately before and immediately after giving effect to such Asset Sale, no Default or otherwise disposed Event of Default shall have occurred and be continuing and (as determined in good faith by the Company’s Board of Directors);
(2iii) at least 75% of the consideration received by the Company or such Subsidiary therefor is in the Restricted form of cash paid at the closing thereof, provided, however, that this clause (iii) shall not apply if, after giving effect to such Asset Sale, the aggregate principal amount of all notes or similar debt obligations and Fair Market Value of all equity securities received by the Company from all Asset Sales since September 25, 2000 (other than such notes or similar debt obligations and such equity securities converted into or otherwise disposed of for cash and applied in accordance with the second succeeding sentence) would not exceed 2.5% of Consolidated Tangible Assets. The amount (without duplication) of any (x) Indebtedness (other than Subordinated Indebtedness) of the Company or such Subsidiary that is expressly assumed by the transferee in such Asset Sale and with respect to which the Company or such Subsidiary, as the case may be, from such Asset Sale shall be in is unconditionally released by the form of cash or Cash Equivalents and shall be received at the time holder of such disposition; provided that, for purposes of this clause Indebtedness and (2y) any securitiesnotes, notes securities or other similar obligations or items of property received by the Company or any such Restricted Subsidiary from such transferee that are converted immediately converted, sold or exchanged by the Company or such Restricted Subsidiary into for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents actually so received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso shall be deemed to be cash for purposes of this 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 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 such Pari Passu Indebtedness) (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 Section 4.12. If at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Companysuch 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 the date of such conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.104.12. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). In the event of the A transfer of substantially all (but not all) of the property and assets of by the Company and its Restricted Subsidiaries as an entirety to a Person in Wholly Owned Subsidiary or by a transaction permitted under Section 5.01, which transaction does not constitute a Change of Control, the successor corporation shall be deemed Wholly Owned Subsidiary to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it 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 another Wholly Owned Subsidiary will not be deemed to be Net Cash Proceeds for purposes an Asset Sale, and a transfer of this assets that constitutes a Restricted Payment and that is permitted under Section 4.104.10 hereof will not be deemed to be an Asset Sale.
(cb) Notwithstanding Sections 4.10(a) and (b)If the Company or any Subsidiary engages in an Asset Sale, the Company or such Subsidiary shall, no later than 360 days after such Asset Sale, (i) apply all or any of the Net Proceeds therefrom to repay Indebtedness that ranks pari passu with the Notes and its Restricted Subsidiaries will be permitted to consummate an is secured by the assets disposed of in the Asset Sale without complying or to repay Bank Debt in accordance with such Sections to the extent that:
applicable provisions thereof, (1ii) at least 75% invest all or any part of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by Net Proceeds therefrom in the lines of business of the Company or any of its Restricted Subsidiaries in connection with immediately prior to such investment or (iii) any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions combination of Sections 4.10(aclauses (i) and (b)ii) above. The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation amount of such Inversion Transaction; Net Proceeds not applied or invested as provided in this paragraph (iib) immediately following such Inversion Transactionwill constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds equals or exceeds $5,000,000, the Company shall apply be required to S&P and ▇▇▇▇▇’▇ make an offer to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; purchase (iiian "Asset Sale Offer") immediately following such Inversion Transactionfrom all Holders, the Company’s Consolidated Fixed Charge Coverage Ratio is at least an aggregate principal amount of Notes equal to the Consolidated Fixed Charge Coverage Ratio immediately prior amount of such Excess Proceeds as follows:
(i) The Company shall make an Asset Sale Offer to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) all Holders in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply accordance with the procedures set forth in this Indenture. Section 4.12 to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased out of the amount (the "Asset Sale Payment Amount") of such Excess Proceeds.
(ii) The notice offer price for the Notes shall be payable in cash in an amount equal to 100% of the principal amount of the Notes tendered pursuant to such Asset Sale Offer, plus accrued and unpaid interest and Additional Interest, if any, to the Holders shall contain all instructions and materials necessary to enable date such Holders to tender Asset Sale Offer is consummated (the "Asset Sale Purchase Price"), in accordance with the procedures set forth in this Section 4.12. To the extent that the aggregate Asset Sale Purchase Price of Notes tendered pursuant to an Asset Sale Offer is less than the Asset Sale Payment Amount relating thereto (such shortfall constituting a "Net Proceeds Deficiency"), the Company may use such Net Proceeds Deficiency, or a portion thereof, for general corporate purposes.
(iii) If the aggregate Asset Sale Purchase Price of Notes validly tendered and not withdrawn by holders thereof exceeds the Asset Sale Payment Amount, Notes to be purchased shall be selected on a pro rata basis.
(iv) Upon completion of such Asset Sale Offer in accordance with the foregoing provisions, the amount of Excess Proceeds with respect to which such Asset Sale Offer was made shall be deemed to be zero. In the event that any other Indebtedness of the Company which ranks pari passu with the Notes ("Other Debt") requires an offer to purchase to be made to repurchase such Other Debt upon the consummation of an Asset Sale, the Company may apply the Excess Proceeds to both purchase such Other Debt and to make an Asset Sale Offer, provided, that the purchase price of such Other Debt does not exceed 100% of the aggregate principal amount or accreted value thereof plus interest thereon. Such With respect to any Excess Proceeds, the Company shall make the Asset Sale Offer in respect thereof at the same time as the analogous offer to purchase is made pursuant to any Other Debt and the purchase date in respect thereof shall be the same as the purchase date in respect thereof pursuant to any Other Debt. With respect to any Asset Sale Offer effected pursuant to this Section 4.12, to the extent the aggregate principal amount of Notes and Other Debt, if any, tendered pursuant to such Asset Sale Offer and the concurrent offer to purchase with respect to such Other Debt exceeds the Excess Proceeds, such Notes and Other Debt, if any, shall be purchased pro rata based on the aggregate principal amount of such Notes and such Other Debt tendered by each holder thereof.
(d) If the Company is required to make an Asset Sale Offer, the Company shall, within 30 days following the date specified in clause (c) above, notify the Trustee thereof and give written notice shall stateof such Asset Sale Offer to each Holder by first-class mail, postage prepaid, at the address of such Holder appearing in the register maintained by the Registrar, stating:
(1) that the Net Proceeds an Asset Sale Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment4.12;
(2) that such Holders have the right to require the Company to apply the Excess Proceeds to repurchase the Notes at a purchase price (including in cash equal to 100% of the principal amount of thereof plus accrued and unpaid interest) and , if any, to the purchase date (which shall be no earlier than 30 days and not later than 60 days from the Net date such notice is mailed (the "Excess Proceeds Offer Payment Date");
(3) that any Note not tendered or accepted for payment will continue to accrue interest if interest is then accruinginterest;
(4) that, unless the Company defaults in making payment therefor, that any Note Notes accepted for payment pursuant to the Net Proceeds Asset Sale Offer shall cease to accrue interest after the Net Excess Proceeds Offer Payment Date;
(5) that Holders electing accepting the offer to have a Note their Notes purchased pursuant to a Net Proceeds the Asset Sale Offer will be required to surrender the NoteNotes, 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 Business Day preceding the Net Excess Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election acceptance of the Asset Sale Offer if the Paying Agent receives, not later than 5:00 p.m., New York City time, the close of business on the second third Business Day preceding the Net Excess Proceeds Offer Payment Date, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his or her election to have such Note Notes purchased; and;
(7) that if the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice aggregate principal amount of Notes surrendered by Holders exceeds the Net Proceeds Offeramount of Excess Proceeds, Holders may elect Company shall select the Notes to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an so that the aggregate amount equal to of Notes so purchased equals the Net amount of Excess Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or with such longer period adjustments as may be required deemed appropriate by law. The the Company so that only Notes in denominations of $1,000 or integral multiples thereof shall comply with be purchased);
(8) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the requirements unpurchased portion of Rule 14e-1 under the Exchange Act Notes surrendered; provided that each Note purchased and each such new Note issued shall be in an original principal amount in denominations of $1,000 or integral multiples thereof;
(9) the calculations used in determining the amount of Excess Proceeds to be applied to the purchase of such Notes;
(10) any other securities laws procedures that a Holder must follow to accept an Asset Sale Offer or effect withdrawal of such acceptance; and
(11) the name and regulations thereunder to address of 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 thisPaying Agent.
Appears in 1 contract
Sources: Indenture (Healthsouth Corp)
Limitation on Asset Sales. (a) The Company Parent shall not, and shall not permit any of its the Restricted Subsidiaries to, directly or indirectly, consummate an any Asset Sale (other than an Involuntary Transfer) unless:
(1i) the Company Parent or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of consummation 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 (as determined in good faith by the Company’s Board of Directors);of; and
(2ii) at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from in such Asset Sale shall be by the Parent or such Restricted Subsidiary is in the form of cash or Cash Equivalents and shall be received at the time of such dispositionEquivalents; provided that, for to the extent that any disposition in such Asset Sale was of Collateral, the non-cash consideration received is pledged as Collateral under the Collateral Agreements within 20 Business Days, in accordance with the requirements set forth in this Agreement.
(b) For purposes of this clause provision, each of the following will be deemed to be cash:
(2i) any Indebtedness (other than Indebtedness that by its terms is subordinated to the Obligations) of (i) any Loan Party (other than the Parent) and (ii) Parent so long as such Indebtedness also constitutes Indebtedness of another Loan Party, in each case that is assumed, repaid or retired by the transferee of any such assets and the applicable Loan Parties are released from further liability; and
(ii) any securities, notes or other obligations received by the Company Parent or any such a Restricted Subsidiary from such transferee that are shall, subject to ordinary settlement periods, converted by the Company Parent or such Restricted Subsidiary into cash or Cash Equivalents (within one year following the closing of such Asset Sale, to the extent of the cash or Cash Equivalents receivedreceived in that conversion.
(c) within 30 Within 365 days after the receipt will be considered “cash” of any Net Proceeds from an Asset Sale (including, without limitation, an Involuntary Transfer), the Parent or “Cash Equivalents”; andthe applicable Restricted Subsidiary, as the case may be, shall apply such Net Proceeds at its option to any combination of the following:
(3i) upon to purchase, repay or prepay the consummation Obligations or other secured Permitted Debt of the Borrowers or any Guarantor which is senior to or pari passu with the Loans or, in the case of an Asset SaleSale other than of Collateral, any Indebtedness (other than Indebtedness that is subordinated in right of payment to the Company shall applyObligations, whether or not secured (including, without limitation, prepayments of the Loans)) of the Parent or any Restricted Subsidiary (and, in the case of revolving obligations, to correspondingly reduce commitments with respect thereto);
(ii) to acquire all or substantially all of the assets of, or cause such Restricted Subsidiary to applyany Capital Stock of, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement andany Person primarily engaged in a Permitted Business, if, in the case of any such Indebtedness under any revolving credit facilityacquisition of Capital Stock, effect a permanent reduction such Person (i) in the availability under case of an Asset Sale of Collateral becomes a Guarantor or (ii) in the case of an Asset Sale other than of Collateral becomes a Restricted Subsidiary, in each case after giving effect to such revolving credit facilityacquisition;
(biii) (i) in the case of an Asset Sale of Collateral, to make a capital expenditure for a Loan Party (other than the Parent) or (ii) in the case of an Asset Sale of other than Collateral, to make a capital expenditure for Parent or any Restricted Subsidiary;
(iv) to make an investment in properties and acquire other assets that replace are not classified as current assets under GAAP and that are used or useful in a Permitted Business (including, without limitation, Vessels, related assets and any related Ready for Sea Costs) for a Loan Party (other than the properties Parent) or make any deposit, installment or progress payment in respect of such assets or payment of any related Ready for Sea Costs; provided that in the case of an Asset Sale of other than Collateral, such assets can be used or such payments can made for Parent or any Restricted Subsidiary; provided that (x) a binding commitment made within the 365-day period described above by the Borrowers or the applicable Restricted Subsidiary to apply Net Proceeds from an Asset Sale in accordance with clauses (2) through (4) above shall toll the 365-day period in respect of such Net Proceeds for a period not to exceed 180 days from the expiration of the aforementioned 365-day period, provided that such Net Proceeds are actually used within the later of 365 days from their receipt from such Asset Sale or 180 days from the date of such binding commitment; provided further that a binding commitment to apply Net Proceeds from an Asset Sale to the purchase, acquisition or construction of an Additional Drilling Unit shall instead toll the 365-day period in respect of such Net Proceeds for a period not to exceed 365 days from the expiration of the aforementioned 365-day period so long as such Net Proceeds are actually used within the later of 365 days from their receipt from such Asset Sale or 365 days from the date of such binding commitment and (y) if the assets that were sold or transferred in such Asset Sale constituted Collateral, the subject Parent shall pledge or cause its applicable Restricted Subsidiary to pledge any assets (including without limitation any acquired Capital Stock) acquired with the Net Proceeds 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”); or
(c) a combination of prepayment and investment permitted by the foregoing pursuant to clauses (3)(a2) and through (3)(b)4) above to secure the Secured Obligations on a first-priority basis (subject to Permitted Collateral Liens) pursuant to the Collateral Agreements.
(bd) On Pending the 366th day after an Asset Sale final application of any Net Proceeds, the Parent or such earlier date, if any, as the Board of Directors of the Company or of such applicable Restricted Subsidiary determines not to apply may invest the Net Proceeds in cash and Cash Proceeds relating to such Asset Sale as set forth in clauses Equivalents.
(3)(a), (3)(be) and (3)(c) of Section 4.10(a) (each, a “Any Net Proceeds Offer Trigger Date”), such from Asset Sales that are not applied or invested as provided in Section 7.21(c) shall constitute "Excess Proceeds." When the aggregate amount of Net Cash Excess Proceeds that have not been applied on exceeds $10,000,000, the Parent shall, or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or shall cause the last proviso of this paragraph (each, a “Net Proceeds Offer Amount”) shall be applied by the Company or such applicable Restricted Subsidiary to to, within ten (10) Business Days thereof, make an offer to purchase (the “Net Proceeds "Asset Sale Offer”") to all Holders and, Lenders 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, repay the maximum principal amount of Notes and Pari Passu Indebtedness Loans that may be purchased with repaid out of the Net Proceeds Excess Proceeds. The offer price in any Asset Sale Offer Amount at a price shall be equal to 100% of the outstanding principal amount of the Notes and Pari Passu Indebtedness to be purchasedLoans, plus accrued and unpaid interest thereoninterest, if any, to the date of purchase; provided, howeverand shall be payable in cash. The aggregate principal amount of Loans repaid pursuant to an Asset Sale Offer shall be applied on a pro rata basis among the Lenders. If any Excess Proceeds remain after consummation of an Asset Sale Offer, that if at such Excess Proceeds shall not constitute Collateral and the Parent and the Restricted Subsidiaries may use those Excess Proceeds for any time any non-cash consideration received purpose not otherwise prohibited by the Company or any Restricted Subsidiary Loan Documents. Upon completion of the Company, as the case may be, in connection with any each Asset Sale is converted into or sold or otherwise disposed Offer, the amount of for cash Excess Proceeds shall be reset at zero.
(other than interest received f) Notwithstanding anything to the contrary contained in this Section 7.21 with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder that is an Event of Loss, such Event of Loss and the Net Cash Event of Loss Proceeds in respect thereof shall be applied in accordance with governed by Section 4.02(a) and not this Section 4.10. The Company may defer 7.21.
(g) In the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which timeevent that, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)7.21, the Parent is required to commence an Asset Sale Offer, each such Asset Sale Offer shall 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 "Asset Sale Offer Period"). In No later than five (5) Business Days after the event termination of the transfer of substantially all Asset Sale Offer Period (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"Asset Sale Offer Settlement Date"), the successor corporation Parent shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company apply or its Restricted Subsidiaries deemed cause to be sold shall be deemed to be Net Cash applied all Excess Proceeds for purposes of this Section 4.10as set forth above.
(ch) Notwithstanding Sections 4.10(a) and (b), Upon the Company and its Restricted Subsidiaries will be permitted to consummate commencement of an Asset Sale without complying with such Sections to Offer, the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company Parent shall deliver or any of its Restricted Subsidiaries in connection with any Asset Sale permitted cause to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with delivered a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders Administrative Agent at the Notice Office, which the Administrative Agent shall contain all instructions and materials necessary promptly deliver to enable such Holders to tender Notes pursuant to the Net Proceeds Offereach Lender. Such The notice shall state:
(1i) that the Net Proceeds Asset Sale Offer is being made pursuant to this Section 4.10 7.21 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) length of time the purchase price (Asset Sale Offer shall remain open, including the amount of accrued interest) time and date the purchase date Asset Sale Offer shall terminate (which shall be the Net Proceeds "Asset Sale Offer Payment Termination Date");
(3ii) that any Note not tendered will continue to accrue interest if interest is then accruing;
the amount of Excess Proceeds, the offer price (4as set forth above) that, unless and the Company defaults in making payment therefor, any Note accepted for payment pursuant to the Net Proceeds Asset Sale Offer shall cease to accrue interest after the Net Proceeds Offer Payment Settlement Date;
(5iii) that Holders the Lenders electing to have a Note any Loans purchased pursuant to a Net Proceeds any Asset Sale Offer will shall be required to surrender notify the Note, with Borrowers and the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Administrative Agent at least one (1) Business Day before the address specified in the notice prior to the close of business on the third business day prior to the Net Proceeds Asset Sale Offer Payment Termination Date;; and
(6iv) that Holders will Lenders shall be entitled to withdraw their election if the Paying Agent Administrative Agent, receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding prior to the Net Proceeds Asset Sale Offer Termination Date, a facsimile transmission or letter (which may be in electronic form) setting forth the name of the HolderLender, a statement that such Lender is withdrawing its election to have its Loans purchased and the principal amount of the Notes the Holder delivered for purchase and a statement that Loans with respect to which such Holder Lender is withdrawing his election to have such Note purchased; andits election.
(7i) Notwithstanding anything herein to the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of contrary, in the Net Proceeds event that any Asset Sale Offer, Holders may elect to tender their Notes in whole Change of Control Offer or in part in integral multiples Event of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Loss Offer Amounthas been commenced but not yet completed, the Parent or the applicable Restricted Subsidiary making such offer shall complete the repayment, repurchase or redemption of all Loans and other Secured Obligations validly tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) for payment in an aggregate amount equal to the Net Proceeds connection with such Asset Sale Offer, Change of Control Offer Amount (if any). A Net Proceeds or Event of Loss 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 otherwise required by the terms of 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 thisoffer.
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 summate an Asset Sale unless:
(1) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets sold or otherwise disposed of (as determined in good faith by the Company’s Board of Directors)of;
(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 or cash, Cash Equivalents and/or Replacement Assets (as defined below) and shall be is received at the time of such disposition; provided that, for purposes that the amount of this clause (2a) any securitiesliabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantee of a Guarantor) that are assumed by the transferee of any such assets, and (b) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will ), shall be considered “cash” or “Cash Equivalents”deemed to be cash for the purposes of this provision; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 270 days of receipt thereof either:;
(a) to (x) repay and permanently reduce Indebtedness the availability of credit under the Credit Agreement and, in or (y) repay and elect to reduce the case amount of any such outstanding Indebtedness under any revolving credit facility, effect a permanent reduction in permitted to be incurred pursuant to clauses (11) and/or (16) of the availability under such revolving credit facilitydefinition of Permitted Indebtedness;
(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 same or a similar line of business of as the Company and its or the Restricted Subsidiaries Subsidiary, as the case may be, as existing on the Issue Date date of this In denture or in businesses reasonably related thereto (“Replacement Assets”); orprovided that the Net Cash Proceeds from an Asset Sale relating to the Company’s tobacco business are used to make an investment in Replacement Assets relating to the tobacco business; provided further that the Net Cash Proceeds of an Asset Sale relating to assets owned directly by the Company or a Guarantor are used to make an investment in Replacement Assets owned directly by the Company or a Guarantor;
(c) to permanently reduce any outstanding Indebtedness of such Restricted Subsidiary to the extent such Restricted Subsidiary is not a Guarantor (and to correspondingly reduce the commitments, if any, with respect thereto); or
(d) a combination of prepayment repayment and investment permitted by the foregoing clauses (3)(a), (3)(b) and (3)(b3)(c).
(b) . On the 366th 271st 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), (3)(c) and (3)(c3)(d) of Section 4.10(a) the preceding paragraph (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(a), (3)(b), (3)(c) and (3)(c3)(d) of Section 4.10(a) or the last proviso of this 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 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to 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 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 dissolution shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.104.15. The Company or such Restricted Subsidiary, as the case may be, may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, million shall be applied as required pursuant to this Section 4.10(b)paragraph). In Notwithstanding the event of foregoing, the transfer of substantially all restriction contained in clause (but not all2) 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 first paragraph of this Section 4.10 and 4.15 shall comply with the provisions of this Section 4.10 not apply with respect to such deemed sale as if it were an Asset Sale. any sale, in whole or in part, of assets or Capital Stock of Standard Wool, Inc. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute each Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion TransactionOffer, the Company shall apply send, by first class mail, a notice to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable each Holder, with a copy to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion TransactionTrustee, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transactionnotice of such, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 1,000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will of tendering Holders shall be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The Company shall and any such Restricted Subsidiaries will comply with the requirements of Rule 14e-1 under the Exchange Act and the regulations thereunder and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this.
Appears in 1 contract
Sources: Indenture (Standard Commercial Corp)
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of 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 's Board of Directors);
, (2ii) 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 or Cash Equivalents Qualified Proceeds and shall be received at the time of such disposition; provided that, for purposes of this clause and (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 360 days of receipt thereof either:
either (aA) to permanently reduce prepay any Indebtedness ranking at least pari passu with the Notes (including Indebtedness under the New Credit Agreement 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;
, (bB) 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 shall be used in the business of the Company and its Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably related or complementary thereto (“"Replacement Assets”"); or
, it being understood that the receipt of Qualified Proceeds (cother than cash or Cash Equivalents) is deemed to be a valid application of such Qualified Proceeds pursuant to this clause (iii)(B), or (C) a combination of prepayment repayment and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) . On the 366th 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)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) the next preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, 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 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to 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 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 4.104.15. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million 5,000,000 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 $10.0 million5,000,000, shall be applied as required pursuant to this Section 4.10(b)paragraph). In Upon completion of a Net Proceeds Offer, the event amount of Net Cash Proceeds and the transfer amount of substantially all (but not all) aggregate unutilized Net Proceeds Offer Amount shall be reset to zero. Accordingly, to the extent that any Net Cash Proceeds remain after consummation of the property and assets of a Net Proceeds Offer, 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 4.10 and shall comply with the provisions of this Section 4.10 with respect to may use 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 any -59- purpose not prohibited by this Section 4.10.
(c) Notwithstanding Sections 4.10(a) Indenture and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will shall be mailed to the record Holders as shown on the register of Holders within 25 days following required until the Net Proceeds Offer Trigger Dateamount again accumulates to $5,000,000. Pending the final application of such Net Cash Proceeds, with a copy to the TrusteeCompany or such Restricted Subsidiary may, and but shall comply with not be required to, temporarily reduce the procedures set forth in this Indenture. The notice to outstanding Indebtedness under any revolving credit facility under the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) New Credit Facility; provided, however, that the final application of such Net Cash Proceeds Offer is being made pursuant to shall be as required by this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this4.15.
Appears in 1 contract
Sources: Indenture (Vista Eyecare Inc)
Limitation on Asset Sales. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, consummate an Asset Sale unless:
unless (1i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of 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 's Board of Directors);
) and (2ii) at least 7585% of the consideration received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents and shall be is received at the time of the consummation of any such dispositionAsset Sale; provided thatPROVIDED, for purposes HOWEVER, that the amount of this clause (2x) any securitiesliabilities (as shown on the Company's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than (i) Indebtedness subordinate in right of payment to the Notes, (ii) contingent liabilities, (iii) liabilities or Indebtedness to Affiliates of the Company and (iv) non-recourse Indebtedness or other non-recourse liabilities) that are assumed by the transferee of any such assets and (y) to the extent of the cash received, any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 60 days of receipt, shall be deemed to be cash for purposes of this provision; PROVIDED, FURTHER, HOWEVER, that the 85% limitation referred to above shall not apply to any sale, transfer or Cash Equivalents (to other disposition of assets in which the extent cash portion of the cash consideration received therefor, determined in accordance with the foregoing proviso, is equal to or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon greater than what the after-tax net proceeds would have been had such transaction complied with the aforementioned 85% limitation. Upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 360 days of receipt thereof either:
either (aA) to permanently reduce Indebtedness under the Credit Agreement andreinvest in Productive Assets, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility;
or (bB) to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale prepay or in properties and assets (including Capital Stock) that will be used in the business repay Indebtedness of the Company which ranks PARI PASSU with the Notes or to prepay or repay any Indebtedness of a Restricted Subsidiary of the Company (other than any non-recourse Indebtedness) in an amount not to exceed the product of (A) the amount of such Net Cash Proceeds and its (B) a fraction, the numerator of which is the total aggregate principal amount of such PARI PASSU Indebtedness or such Indebtedness of Restricted Subsidiaries as existing and the denominator of which is the aggregate of all such Indebtedness plus the aggregate Accreted Value (if the Net Proceeds Offer Payment Date is prior to June 15, 2000) or the aggregate principal amount (if the Net Proceeds Offer Payment Date is on or after June 15, 2000) of the Issue Date or in businesses reasonably related thereto (“Replacement Assets”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) Notes then outstanding. On the 366th 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)(bA) and (3)(cB) of Section 4.10(a) the preceding sentence (each, each a “Net Proceeds Offer Trigger Date”"NET PROCEEDS OFFER TRIGGER DATE"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(a), (3)(bA) and (3)(cB) of Section 4.10(a) or the last proviso of this paragraph preceding sentence (each, each a “Net Proceeds Offer Amount”"NET PROCEEDS OFFER AMOUNT") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”"NET PROCEEDS OFFER") to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”"NET PROCEEDS OFFER PAYMENT DATE") not less than 30 nor more than 45 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum PRO RATA basis that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to the Net Proceeds Offer Amount at a price in cash equal to 100% of the principal amount Accreted Value of the Notes and Pari Passu Indebtedness on the Net Proceeds Offer Payment Date (if prior to June 15, 2000) or 100% of the principal amount thereof (if the Net Proceeds Offer Payment Date is on or after June 15, 2000) to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase; providedPROVIDED, howeverHOWEVER, 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)cash, 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 4.104.16. The Company may defer To the extent that the Accreted Value of Notes on the Net Proceeds Offer until there is an Payment Date (if prior to June 15, 2000) or the aggregate unutilized principal amount of Notes (if the Net Proceeds Offer Amount equal Payment Date is on or after June 15, 2000) tendered pursuant to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use any remaining proceeds of such Asset Sale for general corporate purposes (but subject to the terms of this Indenture). Upon completion of a Net Proceeds Offer, the Net Proceeds Offer Amount relating to such Net Proceeds Offer shall be deemed to be zero for purposes of any subsequent Asset Sale. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $5,000,000, 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 Issue Date of the Notes from all Asset Sales by the Company and its Subsidiaries in respect of which a Net Proceeds Offer has not just been made aggregates at least $5,000,000, at which time the amount Company or such Restricted Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to make a Net Proceeds Offer (each date on which the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $5,000,000 or more shall be deemed to be a Net Proceeds Offer Trigger Date). In connection with any Asset Sale with respect to assets having a book value in excess of $10.0 million5,000,000 or as to which it is expected that the aggregate consideration therefor to be received by the Company or any Restricted Subsidiary will exceed $5,000,000 in value, such transaction or series of transactions shall be applied as required pursuant approved, prior to this Section 4.10(b))the consummation thereof, by the Board of Directors of the Company. 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 4.10 covenant, and shall comply with the provisions of this Section 4.10 covenant with respect to such deemed sale as if it were an Asset Sale; PROVIDED, HOWEVER, that to the extent that the Company is required to make an offer to repurchase the Notes pursuant to Section 4.15 in connection with any transaction that would otherwise be within the terms of this paragraph, the Company need not comply with the provisions of this paragraph. 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 4.10covenant.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this
Appears in 1 contract
Sources: Indenture (Cellnet Data Systems 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:
unless (1i) 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 's Board of Directors);
, (2ii) at least 7585% 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 or Cash Equivalents and shall be is received at the time of such disposition; provided that, for purposes of this clause and (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3iii) upon the consummation of an Asset Sale, the Company either (A) shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 180 days of receipt thereof either:
such Asset Sale either (a1) to permanently reduce repay any Indebtedness under secured by the Credit Agreement and, assets involved in such Asset Sale together with a concomitant permanent reduction in the amount of such Indebtedness (including a permanent reduction in the committed amounts therefor in the case of any such Indebtedness under any revolving credit facilityfacility so repaid), effect a permanent reduction in the availability under such revolving credit facility;
(b2) 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”"); or
, or (c3) a combination of prepayment repayment and investment permitted by the foregoing clauses (3)(aiii)(A)(1) and (3)(b).
iii)(A)(2) or (bB) shall (1) within 150 days of such Asset Sale enter into a definitive written agreement committing it, subject to no material conditions other than conditions customary in such agreements, to make an investment in Replacement Assets within 270 days of such Asset Sale and (2) apply, or cause such Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 270 days of such Asset Sale to an investment in Replacement Assets. On (i) the 366th 181st day after an Asset Sale Sale, or (ii) such earlier date, if any, date 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)(aiii)(A)(1), (3)(biii)(A)(2) and (3)(ciii)(A)(3) of Section 4.10(athe immediately preceding sentence, or (iii) if a definitive written agreement relating to an investment in Replacement Assets was entered into within 150 days of such Asset Sale, on the 271st day after such Asset Sale or such earlier date on which such definitive written agreement is for any reason terminated (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that have which has not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(a), iii)(A) or (3)(b) and (3)(ciii)(B) of Section 4.10(a) or the last proviso of this paragraph immediately preceding sentence (each, 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 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 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum PRO RATA basis that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to the Net Proceeds Offer Amount at a price equal to 100% of the aggregate 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; providedPROVIDED, howeverHOWEVER, 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 hereunder, and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.104.15. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million 5,000,000 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 $10.0 million5,000,000, shall be applied as required pursuant to this Section 4.10(b)paragraph). In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a 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 4.10 covenant, and shall comply with the provisions of this Section 4.10 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 4.10covenant.
(cb) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections Subject to the extent that:
(1) at least 75% deferral of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger DateDate contained in subsection (a) above, each notice of a Net Proceeds Offer pursuant to this Section 4.15 shall be mailed or caused to be mailed, by first class mail, by the Company within 25 days after the Net Proceeds Offer Trigger Date to all Holders at their last registered addresses as of a date within 15 days of the mailing of such notice, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice Offer and shall statestate the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 4.15 and that (subject to the provisions hereof) all Notes tendered and not withdrawn, in whole or in part, in integral multiples of $1,000 will be accepted for payment; PROVIDED, HOWEVER, that if the aggregate principal amount of Notes tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of the Net Proceeds Offer, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 or multiples thereof shall be purchased);
(2) the purchase price (including the amount of any accrued interest) and the purchase date (which shall be 20 Business Days from the date of mailing of notice of such Net Proceeds Offer Payment Offer, or such longer period as required by law) (the "Proceeds Purchase Date");
(3) that any Note not tendered will continue to accrue interest if interest is then accruingon and after the Proceeds Purchase Date;
(4) that, unless the Company defaults in making payment therefor, any Note accepted for payment pursuant to the Net Proceeds Offer offer shall cease to accrue interest on and after the Net Proceeds Offer Payment Purchase Date;
(5) that Holders electing to have a Physical Note purchased pursuant to a Net Proceeds Offer will be required to surrender the Note, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third business day Business Day prior to the Net Proceeds Offer Payment Purchase Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on five Business Days prior to the second Business Day preceding the Net Proceeds Offer 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 his election to have such Note purchased; and
(7) that Holders whose Physical Notes are purchased only in part will be issued new Physical Notes in a principal amount equal to the circumstances unpurchased portion of the Physical Notes surrendered; PROVIDED that each Physical Note purchased and relevant facts regarding each new Physical Note issued shall be in principal amount of $1,000 or integral multiples thereof; On the second Business Day immediately preceding the Proceeds Purchase Date, the Trustee shall notify the Company in writing of the Holders who have so elected to have their Physical Note purchased pursuant to such Net Proceeds OfferOffer (and who have not withdrawn such election, as provided above). Upon receiving notice of On or before the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer AmountPurchase Date, the Company shall (i) accept for payment Notes or portions thereof tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal pursuant to the Net Proceeds Offer Amount which are to be purchased in accordance with item (b)(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. A The Paying Agent shall promptly mail to the Holders so accepted payment in an amount equal to the purchase price for such Notes plus accrued interest, if any, to the Proceeds Purchase Date. For purposes of this Section 4.15, the Trustee shall act as the Paying Agent. Any amounts deposited with the Paying Agent and remaining after the purchase of Notes pursuant to a Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required returned by lawthe Paying Agent to the Company. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder thereunder, in each case, 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 thisthis Section 4.15, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.15 by virtue thereof.
Appears in 1 contract
Sources: Indenture (Discovery Zone Inc)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an make any Asset Sale unless:
(1including by operation of or as a result of an LLC Division) unless (i) the Company or the applicable such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (determined by the Company in good faith as of the date the Company enters into a definitive agreement relating to such Asset Sale) of the assets or other property sold or otherwise disposed of in the Asset Sale and (as determined ii) except (x) in good faith by the Company’s Board case of Directors);
a Permitted Asset Swap or (2y) if such Asset Sale has a purchase price of less than $100.0 million, at least 75% of the such consideration received by the Company or the Restricted Subsidiary, as the case may be, from for such Asset Sale shall be Sale, together with all other Asset Sales since the Escrow Release Date (on a cumulative basis), is in the form of cash or Cash Equivalents and shall be received at or assets used or useful in the time business of such dispositionthe Company; provided that, that for purposes of this clause Section 4.14 “cash” shall include (2A) the amount of any liabilities (other than liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) of the Company or such Restricted Subsidiary (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto) that are assumed by the transferee in connection with such assets or other property in such Asset Sale (and excluding any liabilities that are incurred in connection with or in anticipation of such Asset Sale), but only to the extent that there is no further recourse to the Company or any of its Subsidiaries with respect to such liabilities; (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 Company or such Restricted Subsidiary into cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), in each case, within 180 days following the closing of such Asset Sale; and (C) within 30 days after any Designated Noncash Consideration having an aggregate fair market value that, when taken together with all other Designated Noncash Consideration previously received and then outstanding, does not exceed the greater of (x) $120.0 million and (y) 20.0% of L8QA Consolidated EBITDA at the time of the receipt will be considered “cash” of such Designated Noncash Consideration (with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value). Notwithstanding clause (ii) of this Section 4.14(a), (a) all or “Cash Equivalents”; and
(3) upon a portion of the consummation consideration in connection with any such Asset Sale may consist of all or substantially all of the assets or a majority of the Voting Stock of an existing television or radio business, franchise or station or digital business (whether existing as a separate entity, subsidiary, division, unit or otherwise) or any other Similar Business and (b) the Company may, and may permit its Subsidiaries to, issue shares of Capital Stock in a Qualified Joint Venture to a Qualified Joint Venture Partner without regard to clause (ii) of this Section 4.14(a); provided that, in the case of any of (a) or (b) of this sentence after giving effect to any such Asset Sale and related acquisition of assets or Voting Stock, (x) no Default or Event of Default shall have occurred or be continuing; and (y) the Net Proceeds of any such Asset Sale, if any, are applied in accordance with this Section 4.14.
(b) Within 450 days after the Company shall apply, or cause such Restricted Subsidiary to apply, later of (A) the date of any Asset Sale and (B) the receipt of any Net Cash Proceeds relating to of such Asset Sale within 365 days of receipt thereof either(the “Asset Sale Proceeds Application Period”), the Company or such Restricted Subsidiary, at its option, may elect to apply or cause to be applied the Net Proceeds from such Asset Sale:
(ai) to permanently reduce Indebtedness the extent such Net Proceeds are from an Asset Sale of Collateral, to repay: (A) Obligations under the Notes, (B) Obligations under the Senior Credit Agreement Facilities and, in the case of revolving obligations (other than obligations in respect of any such Indebtedness under any revolving asset-based credit facility), effect a permanent reduction to correspondingly reduce commitments with respect thereto and/or (C) First Lien Obligations (other than the Notes or Obligations under the Senior Credit Facilities) and, in the availability under such case of revolving obligations (other than obligations in respect of any asset-based credit facility), to correspondingly reduce commitments with respect thereto; provided that in the case of any repayment pursuant to this clause (C), the Company or such Restricted Subsidiary will either (I) reduce Obligations under the Notes on a pro rata basis with such other First Lien Obligations by, at its option, (x) redeeming Notes pursuant to Section 3.01 or (y) purchasing Notes through open-market purchases or in privately negotiated transactions at market prices (which may be below par), or (II) make an offer (in accordance with the procedures set forth below for a Collateral Asset Sale Offer) to all Holders to purchase their Notes on a ratable basis with such other First Lien Obligations for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon up to the principal amount of Notes to be repurchased;
(bii) to the extent such Net Proceeds are from an Asset Sale that does not constitute Collateral, to repay: (A) Obligations under Secured Indebtedness (other than Indebtedness owed to the Company or a Restricted Subsidiary), and, in the case of revolving obligations (other than obligations in respect of any asset-based credit facility), to correspondingly reduce commitments with respect thereto and/or (B) Obligations under any unsecured Indebtedness of the Company or any Restricted Subsidiary that ranks pari passu in right of payment to the Notes (“Pari Passu Indebtedness”) and, in the case of revolving obligations (other than obligations in respect of any asset-based credit facility), to correspondingly reduce commitments with respect thereto; provided that in the case of any repayment pursuant to this clause (B), the Company or such Restricted Subsidiary will either (I) reduce Obligations under the Notes on a pro rata basis with such other ▇▇▇▇ ▇▇▇▇▇ Indebtedness by, at its option, (x) redeeming Notes pursuant to Section 3.01 or (y) purchasing Notes through open-market purchases or in privately negotiated transactions at market prices (which may be below par), or (II) make an investment offer (in properties and assets that replace accordance with the properties and assets that were the subject of such procedures set forth below for an Asset Sale Offer) to all Holders to purchase their Notes (which may be on a ratable basis with such other Pari Passu Indebtedness) for no less than 100% of the principal amount thereof, plus the amount of accrued but unpaid interest, if any, thereon up to the principal amount of Notes to be repurchased; provided that to the extent the Company or in properties any Restricted Subsidiary makes an offer to redeem, prepay, repay or purchase any Obligations pursuant to any of the foregoing clauses (i) and assets (including Capital Stockii) that at a price of no less than 100% of the principal amount thereof, to the extent the relevant creditors do not accept such offering, the Company and the Restricted Subsidiaries will be used deemed to have applied an amount of the Net Proceeds equal to such amount not so accepted in such offer, and such amount shall not increase the amount of Collateral Excess Proceeds or Excess Proceeds (and such amount shall instead constitute Declined Collateral Proceeds or Declined Proceeds, as the case may be);
(iii) to invest in the business of the Company and its Restricted Subsidiaries as existing on the Issue Date or Subsidiaries, including any investment in businesses reasonably related thereto (“Replacement Additional Assets”); or;
(civ) to make capital expenditures in or that are used or useful in a combination Similar Business or to make capital expenditures for maintenance, repair or improvement of prepayment and investment permitted by existing assets in accordance with the terms of this Indenture; provided that the Company may elect to deem Investments or capital expenditures within the scope of the foregoing clauses (3)(aiii) and or (3)(biv).
(b) On the 366th day after an Asset Sale or such earlier date, if any, as applicable, that occur prior to the Board of Directors receipt of the Company Net Proceeds to have been made in accordance with such clauses (iii) or (iv) so long as such deemed Investments or capital expenditures shall have been made no earlier than the earlier of such Restricted Subsidiary determines not to apply (x) the Net Cash Proceeds execution of a definitive agreement relating to such Asset Sale as set forth in clauses (3)(a), (3)(b) and (3)(cy) the consummation of Section 4.10(asuch Asset Sale; and/or
(v) (each, any combination of the foregoing; provided that a “binding commitment or letter of intent shall be treated as a permitted application of the Net Proceeds Offer Trigger Date”), from the date of such aggregate amount commitment or letter of Net Cash Proceeds intent so long as the Company or a Restricted Subsidiary enters into such commitment with the good faith expectation that have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses will be applied to satisfy such commitment within 180 days of the expiration of the Asset Sale Proceeds Application Period (3)(a), (3)(ban “Acceptable Commitment”) and (3)(c) of Section 4.10(a) or the last proviso of this paragraph (each, a “such Net Proceeds Offer Amountare actually applied substantially in such manner within 180 days of the expiration of the Asset Sale Proceeds Application Period (the period from the consummation of the Asset Sale to such date, the “First Commitment Application Period”) or, in the event any Acceptable Commitment is later terminated or cancelled prior to the application of such Net Proceeds or such Net Proceeds are not so applied within such First Commitment Application Period, then such Net Proceeds shall be applied by constitute Collateral Excess Proceeds or Excess Proceeds, as the case may be, unless the Company or such Restricted Subsidiary reasonably intends to make enter into another Acceptable Commitment prior to the expiration of the First Commitment Application Period (a “Second Commitment”) and such Net Proceeds are actually applied substantially in such manner within 180 days of the date of entering into the Second Commitment; provided, further, that if any Second Commitment is cancelled or terminated for any reason before such Net Proceeds are applied or if the date of such Second Commitment is not prior to the date of the expiration of the First Commitment Application Period then such Net Proceeds shall constitute Collateral Excess Proceeds or Excess Proceeds, as the case may be.
(c) Any Net Proceeds from an Asset Sale of Collateral not applied or invested as provided and within the time period set forth in Section 4.14(b) will be deemed to constitute “Collateral Excess Proceeds”; provided that any amount of Net Proceeds offered to Holders of the Notes pursuant to clause (i)(C)(II) of Section 4.14(b) shall not be deemed to be Excess Proceeds without regard to whether such offer is accepted by any Holders. In no event later than 20 Business Days after any date (a “Collateral Asset Sale Offer Trigger Date”) that the aggregate amount of Collateral Excess Proceeds exceeds $75.0 million, the Company shall commence an offer to purchase (the a “Net Proceeds Collateral Asset Sale Offer”) to all Holders of Notes and, to the extent if required or permitted by the terms of any Pari Passu Indebtednessother First Lien Obligations or Obligations secured by a Lien permitted under this Indenture on the assets disposed of (which Lien is not subordinate to the Lien of the Notes with respect to the Collateral), to all the holders of such Pari Passu Indebtednessother First Lien Obligations and/or other Obligations as selected by the Company, 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, to purchase the maximum aggregate principal amount (or accreted value, as applicable) of the Notes and Pari Passu Indebtedness such other First Lien Obligations and other Obligations that is, with respect to the Notes only, in an amount equal to $1,000, or an integral multiple of $1,000 in excess thereof, that may be purchased with out of the Net Collateral Excess Proceeds Offer Amount at a price an offer price, in the case of the Notes only, in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchasedthereof (or accreted value thereof, if less), plus accrued and unpaid interest thereoninterest, if any, to to, but excluding, the date fixed for the closing of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may besuch offer, 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. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture, and, in the case of such other First Lien Obligations and other Obligations, at the offer price required by the terms thereof, in accordance with the procedures set forth in the agreement(s) governing such other First Lien Obligations or other Obligations. The notice Company may satisfy the foregoing obligations with respect to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the any Net Proceeds Offer. Such notice shall state:
(1) that the from an Asset Sale of Collateral by making a Collateral Asset Sale Offer with respect to such Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) time period that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The Company shall comply this Indenture with respect to all or a part of 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 available Net Proceeds (the “Collateral Advance Portion”) in advance of being required to do so by this Indenture (an “Collateral Advance Offer. To the extent that the provisions of any securities laws or regulations conflict with this”).
Appears in 1 contract
Sources: Indenture (E.W. SCRIPPS Co)
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate in the ordinary course of business or otherwise, sell, lease, convey, transfer or otherwise dispose of any of the Company’s, or of any such Subsidiary’s, assets (including Capital Stock and warrants, options or other rights to acquire Capital Stock) (an “Asset Sale”), other than pursuant to a Permitted Asset Sale unless:
or a Limited Permitted Asset Sale, unless (1A) the Company receives, or the applicable Restricted Subsidiaryrelevant Subsidiary receives, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (including as to the value of the assets sold or otherwise disposed of (all non-cash consideration), as determined in good faith by the Company’s Board of Directors);
(2) at least 75% Directors of the consideration received by Company, of the assets subject to such Asset Sale, and (B) within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted relevant Subsidiary, as the case may be, from shall apply all such Asset Sale shall be in the form of cash or Cash Equivalents and shall be received at the time of such disposition; provided that, for purposes of this clause (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof eitherto:
(a) to permanently reduce Indebtedness under the Credit Agreement and, in the case of any such Indebtedness repay or prepay indebtedness under any revolving credit facility, effect Credit Facility secured by a permanent reduction in lien on assets of the availability under such revolving credit facilityCompany or any Subsidiary;
(b) to make an investment acquire all or substantially all of the assets of, or any Capital Stock of, a person primarily engaged in properties and assets a Permitted Business; provided, 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 case of the acquisition of Capital Stock of any Person, such Person is or becomes a Subsidiary of the Company and its Restricted will be subject to all restrictions described in this First Supplemental Indenture as applying to Subsidiaries as of the Company existing on the Issue Date or in businesses reasonably related thereto (“Replacement Assets”); orDate;
(c) make a capital expenditure;
(d) acquire other assets that are not classified as current assets under US GAAP and that are used or useful in a Permitted Business (including, without limitation, Vessels and Related Assets);
(e) repay unsecured senior indebtedness of the Company or any Subsidiary (including any redemption, repurchase, retirement or other acquisition of the Notes); and
(f) any combination of prepayment and investment the transactions permitted by the foregoing clauses (3)(aa) through (e), provided, that any sale, assignment, conveyance, transfer or lease of all or substantially all of the Company’s properties and assets to any Person or Persons (3)(b)whether in a single transaction or a series of related transactions) will be governed by the provisions described under Section 4.01 of this First Supplemental Indenture and Article 5 of the Indenture and not by the provisions of this Section 6.06.
A (b1) 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 binding contract to apply the Net Cash Proceeds relating to such Asset Sale as set forth in accordance with clauses (3)(a), b) through (3)(bd) and (3)(c) above shall toll the 365-day period in respect of Section 4.10(a) (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 clauses or (3)(a), (3)(b2) and (3)(c) of Section 4.10(a) or the last proviso of this paragraph (each, a “Net Proceeds Offer Amount”) shall be applied determination by the Company to apply all or a portion of such Restricted Subsidiary Net Proceeds toward the exercise of an outstanding purchase option contract shall toll the 365-day period in respect of such Net Proceeds or portion thereof, in each case, for a period not to exceed 365 days or, in the case of a binding contract to acquire one or more Vessels, until the end of the construction or delivery period specified in such binding contract, as the same may be extended, from the expiration of the aforementioned 365-day period, provided, that such binding contract and such determination by the Company, in each case, shall be treated as a permitted application of Net Proceeds from the date of such binding contract or determination until and only until the earlier of (x) the date on which such acquisition or expenditure is consummated and (y) (i) in the case of a construction contract or any exercised purchase option contract, the date of expiration or termination of such construction contract or exercised purchase option contract and (ii) in all other cases, the 365th day following the expiration of the aforementioned 365-day period. Pending the final application of any Net Proceeds, the Company or any of its Subsidiaries may apply Net Proceeds to the repayment or reduction of outstanding indebtedness or otherwise invest the Net Proceeds in any manner that is not prohibited by the Indenture. If a Limited Permitted Asset Sale occurs at any time, the Company must, within 30 days of such Limited Permitted Asset Sale, make pursuant to Article V of this First Supplemental Indenture an offer to purchase Notes having a principal amount equal to the Excess Proceeds of such Limited Permitted Asset Sale. The price that the Company will be required to pay (the “Net Proceeds OfferLimited Permitted Asset Sale Purchase Price”) 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 such Pari Passu Indebtedness) (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 is equal to 100101% of the principal amount of the Notes and Pari Passu Indebtedness to be purchased, plus accrued and unpaid interest thereonto, if anybut excluding, the Limited Permitted Asset Sale Purchase Date, subject to the date right of purchase; provided, however, that if at any time any non-cash consideration received by Holders of record on the Company or any Restricted Subsidiary relevant Record Date to receive interest due on the relevant Interest Payment Date. If the offer to purchase is for less than all of the Company, as the case may be, outstanding Notes and Notes 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. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the principal amount in excess of $10.0 million, shall be applied as required the purchase amount are tendered and not withdrawn pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b)offer, the Company and its Restricted Subsidiaries will be permitted to consummate purchase Notes having an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least aggregate principal amount equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) basis, with adjustments so that only notes in an aggregate multiples of $25.00 principal amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may will be required by lawpurchased. The “Limited Permitted Asset Sale Purchase Date” will be a date specified by the Company shall comply with that is not less than 20 or more than 35 calendar days following the requirements date of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to Limited Permitted Asset Sale notice as described in Article V of this First Supplemental Indenture. Any Notes purchased by the extent such laws and regulations are applicable in connection with the repurchase of Notes Company pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thissuch offer to purchase will be paid for in cash.
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:
unless (1i) 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 's Board of Directors);
, (2ii) 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 or Cash Equivalents and shall be received at Equivalents; PROVIDED that the time amount of such disposition; provided that, for purposes of this clause (2a) any securitiesliabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets, and (b) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash received), shall be deemed to be cash for the purposes of this provision or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
for purposes of the third paragraph of this covenant, and (3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
either (aA) to permanently reduce Indebtedness under the Credit Agreement prepay any Senior Debt or any Guarantor Senior Debt and, in the case of any such Indebtedness Senior Debt or Guarantor Senior Debt under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility;
, (bB) to make an investment reinvest in properties and assets that replace the properties and assets that were the subject of such Asset Sale Productive Assets, 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”); or
(cC) a combination of prepayment prepayment, repurchase and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) . Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in Cash Equivalents. 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)(aiii)(A), (3)(biii)(B) and or (3)(ciii)(C) of Section 4.10(a) the next preceding sentence (each, a “Net Proceeds Offer Trigger Date”"NET PROCEEDS OFFER TRIGGER DATE"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, each a “Net Proceeds Offer Amount”"NET PROCEEDS OFFER AMOUNT") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”"NET PROCEEDS OFFER") to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”"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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum basis that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to 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, 45 to the date of purchase; providedPROVIDED, howeverHOWEVER, 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 4.10covenant. The Company Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $10.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may defer 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 until there is an aggregate unutilized Trigger Date relating to such initial Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more all Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). In the event of the transfer of substantially all (but not all) of the property and assets of by the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01aggregates at least $10.0 million, at 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 4.10 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 time the Company or its such Restricted Subsidiaries deemed Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to be sold make a Net Proceeds Offer (the first date the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $10.0 million or more shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (ba "NET PROCEEDS OFFER TRIGGER DATE"), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in the Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding the Net Proceeds Offer Amount, Notes of tendering Holders will be purchased on a pro rata basis (based on amounts tendered). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. To the extent that the aggregate amount of Notes tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use any remaining Net Proceeds Offer Amount for general corporate purposes. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero.
(b) Subject to the deferral of the Net Proceeds Offer Trigger Date contained in the second paragraph of subsection (a) above, each notice of a Net Proceeds Offer pursuant to this IndentureSection 4.16 shall be mailed or caused to be mailed, by first class mail, by the Company not more than 25 days after the Net Proceeds Offer Trigger Date to all Holders at their last registered addresses as of a date within 15 days of the mailing of such notice, with a copy to the Trustee. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice Offer and shall statestate the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 4.16 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment; PROVIDED, HOWEVER, that if the aggregate principal amount of Notes tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of the Net Proceeds Offer, the Company shall select the Notes to be purchased on a PRO RATA basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 or multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be 20 Business Days from the date of mailing of notice of such Net Proceeds Offer Payment DateOffer, or such longer period as required by law) (the "PROCEEDS PURCHASE DATE"); PROVIDED that the Proceeds Purchase Date for the Notes shall be a date subsequent to any payment dates for the purchase or other repayment of Senior Debt having similar provisions;
(3) that any Note not tendered will continue to accrue interest if interest is then accruinginterest;
(4) that, unless the Company defaults in making payment therefortherefore, any Note accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to a Net Proceeds Offer will be required to surrender the Note, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third business day Business Day prior to the Net Proceeds Offer Payment Purchase Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on five Business Days prior to the second Business Day preceding the Net Proceeds Offer Purchase Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder ▇▇▇▇▇▇ is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, that Holders may elect to tender their whose Notes are purchased only in part will be issued new Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate principal amount equal to the unpurchased portion of the Notes surrendered; PROVIDED that each Note purchased and each new Note issued shall be in an original principal amount of $1,000 or integral multiples thereof. On or before the Proceeds Purchase Date, the Company shall (i) accept for payment Notes or portions thereof tendered pursuant to the Net Proceeds Offer Amount offer which are to be purchased in accordance with item (b)(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. A The Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an amount equal to the purchase price plus accrued interest, if any. For purposes of this Section 4.16, the Trustee shall act as the Paying Agent. Any amounts remaining after the purchase of Notes pursuant to a Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required returned by lawthe Trustee to the Company. 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 purchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthe provisions of this Indenture relating to a Net Proceeds Offer, the Company shall comply with 47 the applicable securities laws and regulations and shall not be deemed to have breached its obligations relating to such Net Proceeds offer by virtue thereof.
Appears in 1 contract
Sources: Indenture (Dade Behring Inc)
Limitation on Asset Sales. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, consummate complete an Asset Sale unless:
(1) the Company or the such applicable Restricted 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 Fair Market Value of the assets sold or otherwise disposed of (as determined in good faith by the Company’s Board of Directors)of;
(2) at least not less than 75% of the consideration received by the Company or the such applicable Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of (A) cash or Cash Equivalents Equivalents, or (B) Replacement Assets, and shall be in each case set forth in subclauses (A) and (B) of this clause (a)(2), is received at the time of such sale or other disposition; provided thatprovided, for purposes that the amount of this clause (2i) any securities, notes Debt or other obligations liabilities that would appear as liabilities on a balance sheet prepared in accordance with GAAP (other than subordinated Debt) of the Company or any such applicable Restricted Subsidiary that is actually assumed by the transferee in such Asset Sale (or a third party on behalf of the transferee) and from which the Company or such applicable Restricted Subsidiaries are fully and unconditionally released, (ii) any securities or notes received by the Company or any such applicable Restricted Subsidiary from such transferee that which are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of such Asset Sale (to the extent of the cash or Cash Equivalents received), and (iii) within 30 days after receipt any Designated Non-Cash Consideration received by the Company or such applicable Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not to exceed $37,500,000 (with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), will be considered “cash” or “Cash Equivalents”deemed to be cash for purposes of this clause (a)(2) and to have been received at the time of such sale; and
(3) upon The Asset Sale Proceeds received by the consummation Company or such Restricted Subsidiary, as the case may be, may be applied, at the option of the Company or such Restricted Subsidiary:
(A) if the assets subject of such Asset Sale constitute Notes Priority Lien Collateral, to prepay, repay or purchase (or offer to prepay, repay or purchase, as applicable) the Notes and any other Priority Lien Obligations on a pro rata basis; provided, that any repayment, prepayment or purchase of (or offer to prepay, repay or purchase) obligations under the Notes shall be made as provided under “Optional Redemption,” through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus accrued unpaid interest) or by making an offer (in accordance with the procedures set forth below for an Excess Proceeds Offer) to all Holders of Notes 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 purchased;
(B) if the assets subject of such Asset Sale do not constitute Notes Priority Lien Collateral, to prepay, repay or purchase (or offer to prepay, repay or purchase, as applicable) indebtedness under any Credit Facilities or any other secured Debt of the Company (including the Notes) or any Restricted Subsidiary (other than Subordinated Lien Debt); provided, that any repayment, prepayment or purchase of (or offer to prepay, repay or purchase) obligations under the Notes shall be made as provided under “Optional Redemption,” through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus accrued unpaid interest) or by making an offer (in accordance with the procedures set forth below for an Excess Proceeds Offer) to all Holders of Notes 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 purchased; or
(C) with respect to the proceeds of any Asset Sale, the Company shall apply, to make capital expenditures or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(b) to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale are used or in properties and assets (including Capital Stock) that will be used useful in the business of the Company and or its Restricted Subsidiaries or in businesses reasonably similar to or ancillary to the business of the Company or its Restricted Subsidiaries as existing on conducted at the Issue Date time of such Asset Sale (including the acquisition of Capital Stock of any such business or in businesses reasonably related thereto (“Replacement Assets”businesses); or
provided, that (ci) a combination of prepayment and such investment permitted by the foregoing clauses occurs or (3)(aii) and (3)(b).
(b) On the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of any such Restricted Subsidiary determines not enters into contractual commitments to so apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses Proceeds, subject only to customary conditions (3)(aother than the obtaining of financing), in each case, within 365 days following the receipt of such Asset Sale Proceeds (3)(b) and and, in the case of any commitment referred to in the preceding clause (3)(c) of Section 4.10(a) (each, a “Net Proceeds Offer Trigger Date”ii), the transactions contemplated thereby are consummated within 180 days of the 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 clauses (3)(acommitment is entered into); provided, (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 andfurther, to the extent required by Asset Sale Proceeds of Collateral are used to acquire additional assets, such additional assets (other than, for avoidance of doubt, Excluded Assets) are pledged subject to the terms Intercreditor Agreement and the Collateral Trust Agreement, as Collateral for the benefit of any Pari Passu Indebtednessthe Collateral Trustee, to all holders the Trustee and the 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 such Pari Passu Indebtedness) (and holders of Notes. Pending any such Pari Passu Indebtednessreinvestment (x) Asset Sale Proceeds of Notes Priority Lien Collateral shall, as promptly as practicable, subject to the Intercreditor Agreement, be deposited in a Noteholder Proceeds Collateral Account pledged as Notes Priority Lien Collateral for the benefit of the Priority Lien Obligations, ABL Debt Obligations and Subordinated Lien Obligations in accordance with the Intercreditor Agreement and the Collateral Trust Agreement, and (y) Asset Sale Proceeds of ABL Priority Lien Collateral shall, as promptly as practicable, subject to the Intercreditor Agreement, be deposited in a deposit account or securities account pledged as ABL Priority Lien Collateral for the benefit of the ABL Debt Obligations, Priority Lien Obligations and Subordinated Lien Obligations in accordance with the Intercreditor Agreement and the Collateral Trust Agreement. If on a pro rata basissuch 365th day following any Asset Sale, the maximum Available Asset Sale Proceeds from such Asset Sale exceed $15,000,000, the Company will apply an amount of equal to such Available Asset Sale Proceeds to an offer to repurchase the Notes and, at its option, other Debt that is secured on an equal and Pari Passu Indebtedness that may be purchased with the Net Proceeds Offer Amount ratable basis at a purchase price in cash equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchasedsuch other Debt, plus accrued and unpaid interest thereoninterest, if any, to the purchase date of purchase; provided, however, that if at any time any non-cash consideration received by (an "Excess Proceeds Offer"). The Company may satisfy 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 foregoing obligations with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Available Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10. The Company may defer the Net by making an Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were Available Asset Sale Proceeds prior to the expiration of the relevant 365 day period (or such longer period provided above) or with respect to Available Asset Sale Proceeds of less than $15,000,000. If an Asset Sale. In additionExcess Proceeds Offer is not fully subscribed, the fair market value of such properties Company may retain and assets use for general corporate purposes the portion of the Company or its Restricted Subsidiaries deemed Available Asset Sale Proceeds not required to be sold repurchase Notes. Upon completion of any Excess Proceeds Offer, the amount of Available Asset Sale Proceeds shall be deemed reset to be Net Cash Proceeds for purposes of this Section 4.10zero.
(cb) Notwithstanding Sections 4.10(a) and (b), If the Company and its Restricted Subsidiaries will be permitted is required to consummate make an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Excess Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion TransactionOffer, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to mail, within 30 days of the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days 365th day following the Net receipt of the Available Asset Sale Proceeds Offer Trigger Dateexceeding $15,000,000 as specified in Section 10.09(a), with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders Holders, at the address appearing in the Security Register maintained by the Security Registrar, stating the information set forth below. The notice, which shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to govern the Net terms of the Excess Proceeds Offer. Such notice , shall state:
(1A) that the Net Company is offering to apply the Available Asset Sale Proceeds Offer is being made pursuant to this Section 4.10 repurchase such Notes at a purchase price in cash equal to 100% of the principal amount of the Notes, plus accrued and that (subject unpaid interest, if any, to the provisions hereof) all Notes tendered will be accepted for paymentpurchase date;
(2B) the purchase price (including the amount of accrued interest) and the purchase date (which shall be no earlier than 30 days nor later than 60 days from the Net Proceeds Offer Payment Datedate such notice is mailed);
(3C) the instructions that any Note not tendered will continue to accrue interest if interest is then accruing;
(4) that, unless the Company defaults each Holder must follow 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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election order to have such Note Notes purchased, which shall be reasonable and customary for transactions of this nature; and
(7D) the circumstances and relevant facts regarding such Net calculations used in determining the amount of Available Asset Sale Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal applied to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period purchase of 20 business days or such longer period as may be required by lawNotes. 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 a Net in connection with an Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis Section 10.09, the Company shall comply with the applicable securities laws and regulations and shall be deemed not to have breached its obligations under this Section 10.09 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Catalyst Paper Corp)
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 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 's senior management or, in the case of an Asset Sale in excess of $5.0 million, the Board of DirectorsDirectors of the Company);
(2ii) 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 (x) cash or Cash Equivalents Equivalents, (y) properties and shall assets to be owned by the Company or any of its Restricted Subsidiaries and used in a Permitted Business or (z) Capital Stock in one or more Persons engaged in a Permitted Business that are or thereby become Restricted Subsidiaries of the Company, and, in each case, such consideration is received at the time of such disposition; provided that, for purposes PROVIDED that the amount of this clause (2a) any securitiesliabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Securities) that are assumed by the transferee of any such assets, and (b) any notes or other obligations securities received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days after such Asset Sale (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will shall be considered “cash” or “Cash Equivalents”deemed to be cash for the purposes of this provision only; and
(3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 390 days of receipt thereof either:
(aA) to permanently reduce prepay any Senior Debt or Indebtedness under the Credit Agreement of a Restricted Subsidiary and, in the case of any such Senior Debt or Indebtedness of a Restricted Subsidiary under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facilityfacility (or effect a permanent reduction in availability under such revolving credit facility regardless of the fact that no prepayment is required);
(bB) to make an investment Investment (x) in properties and assets that replace the properties and assets that were the subject of such Asset Sale or Sale, (y) in properties and assets (including Capital Stock) that will be used by the Company or a Restricted Subsidiary in the business a Permitted Business or (z) permitted by clause (1) of the Company and its Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably related thereto definition of Permitted Investments (“Replacement Assets”collectively, "REPLACEMENT ASSETS"); or
(cC) a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) . Pending the final application of the Net Cash Proceeds, the Company and its Restricted Subsidiaries may temporarily reduce Indebtedness or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture. On the 366th 391st day after an Asset Sale or such earlier date, if any, as the senior management or the Board of Directors of the Company or of such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) the next preceding paragraph (each, a “Net Proceeds Offer Trigger Date”"NET PROCEEDS OFFER TRIGGER DATE"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this next preceding paragraph (each, each a “Net Proceeds Offer Amount”"NET PROCEEDS OFFER AMOUNT") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”"NET PROCEEDS OFFER") to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”"NET PROCEEDS OFFER PAYMENT DATE") not less than 30 nor more than 45 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with Securities equal to the Net Proceeds Offer Amount at a price equal to 100% of the principal amount Accreted Value of the Notes and Pari Passu Indebtedness Securities to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase; providedPROVIDED, howeverHOWEVER, that if the Company -76- is required by the terms of any Senior Subordinated Debt, such Net Proceeds Offer may be made ratably to purchase the Securities and such other Indebtedness of the Company that ranks PARI PASSU with the Securities. If at any time any non-cash consideration received by the Company or any Restricted 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 4.10Section. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)the second preceding paragraph). In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.015.1, which transaction does not constitute a Change of Control, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 Section, and shall comply with the provisions of clause (iii) 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b)4.17. Notice of each Net Proceeds Offer pursuant to this Section 4.17 shall be mailed or caused to be mailed, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by first class mail, by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the applicable Net Proceeds Offer Trigger DateDate to all Holders at their last registered addresses, with a copy to the Trustee, and . A Net Proceeds Offer shall comply with the procedures set forth in this Indentureremain open for a period of 20 Business Days or such longer period as may be required by law. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes Securities pursuant to the Net Proceeds Offer. Such notice Offer and shall statestate the following terms:
(1i) that Holders may elect to have their Securities purchased by the Company either in whole or in part (subject to proration as hereinafter described in the event the Net Proceeds Offer is oversubscribed) in integral multiples of $1,000 principal amount at maturity, at the applicable purchase price;
(ii) that the Net Proceeds Offer is being made pursuant to this Section 4.10 4.17 and that (subject to the provisions hereof) all Notes Securities tendered will be accepted for payment; PROVIDED, HOWEVER, that if the principal amount of Securities tendered in the Net Proceeds Offer exceeds the -77- aggregate amount of the Net Proceeds Offer Amount, the Company shall select the Securities to be purchased on a PRO RATA basis (based on amounts tendered) (with such adjustments as may be deemed appropriate by the Company so that only Securities in denominations of $1,000 principal amount at maturity, or integral multiples thereof, shall be purchased);
(2iii) the purchase price (including the amount of accrued interest, if any) and the purchase date (which shall be no earlier than 30 days nor later than 60 days from the Net Proceeds Offer Payment Trigger Date, other than as may be required by applicable law);
(3iv) that any Note Security not tendered will continue to accrete Accreted Value or accrue interest if interest is then accruinginterest, as the case may be;
(4v) that, unless the Company defaults in making payment therefor, any Note Security accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Date;
(5vi) that Holders electing to have a Note Security purchased pursuant to a the Net Proceeds Offer will be required to surrender the NoteSecurity, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third business day prior to the Net Proceeds Offer Payment Date;
(6vii) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding prior to the Net Proceeds Offer Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes Security the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note Security purchased; and
(7viii) that Holders whose Securities are purchased only in part will be issued new Securities in a principal amount at maturity equal to the circumstances unpurchased portion of the Securities surrendered. On or before the Net Proceeds Offer Payment Date, the Company shall (i) accept for payment Securities or portions thereof tendered pursuant to the Net Proceeds Offer, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price, plus accrued interest, if any, of all Securities to be purchased and relevant facts regarding (iii) deliver to the Trustee Securities so accepted together with an Officers' Certificate stating the Securities or portions thereof being purchased by the Company. The Paying Agent shall promptly mail to the Holders of Securities so accepted payment in an amount equal to the purchase price, plus accrued interest, if any, thereon set forth in the notice of such Net Proceeds Offer. Upon receiving notice Any Security not so accepted shall be promptly mailed by the Company to the Holder thereof. For purposes of this Section 4.17, the Trustee shall act as the Paying Agent. Any amounts remaining after the purchase of Securities pursuant to a Net Proceeds Offer, Holders may elect Offer shall be returned by the Trustee to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cashthe Company. To the extent Holders properly tender Notes and holders that the aggregate amount of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Securities tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to Company may use such excess Net Proceeds Offer Amount for general corporate purposes or for any other purposes not prohibited by this Indenture. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by lawreset at zero. The Company shall 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 Securities pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthe provisions of this Section 4.17, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.17 by virtue thereof. The provisions of this Section and other provisions contained in this Indenture relating to the Company's obligation to make a Net Proceeds Offer may be waived or modified with the written consent of the Holders of a majority in principal amount at maturity of the Securities.
Appears in 1 contract
Sources: Indenture (Salt Holdings Corp)
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:
unless (1i) the Company or the applicable Restricted Subsidiary, as the case may be, such Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets sold included in such Asset Sale, (ii) immediately before and immediately after giving effect to such Asset Sale, no Default or otherwise disposed Event of Default shall have occurred and be continuing and (as determined in good faith by the Company’s Board of Directors);
(2iii) at least 75% of the consideration received by the Company or such Subsidiary therefor is in the Restricted form of cash paid at the closing thereof, provided, however, that this clause (iii) shall not apply if, after giving effect to such Asset Sale, the aggregate principal amount of all notes or similar debt obligations and Fair Market Value of all equity securities received by the Company from all Asset Sales since September 25, 2000 (other than such notes or similar debt obligations and such equity securities converted into or otherwise disposed of for cash and applied in accordance with the second succeeding sentence) would not exceed 2.5% of Consolidated Tangible Assets. The amount (without duplication) of any (x) Indebtedness (other than Subordinated Indebtedness) of the Company or such Subsidiary that is expressly assumed by the transferee in such Asset Sale and with respect to which the Company or such Subsidiary, as the case may be, from such Asset Sale shall be in is unconditionally released by the form of cash or Cash Equivalents and shall be received at the time holder of such disposition; provided that, for purposes of this clause Indebtedness and (2y) any securitiesnotes, notes securities or other similar obligations or items of property received by the Company or any such Restricted Subsidiary from such transferee that are converted immediately converted, sold or exchanged by the Company or such Restricted Subsidiary into for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents actually so received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso shall be deemed to be cash for purposes of this 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 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 such Pari Passu Indebtedness) (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 Section 4.12. If at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Companysuch 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 the date of such conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.104.12. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). In the event of the A transfer of substantially all (but not all) of the property and assets of by the Company and its Restricted Subsidiaries as an entirety to a Person in Wholly Owned Subsidiary or by a transaction permitted under Section 5.01, which transaction does not constitute a Change of Control, the successor corporation shall be deemed Wholly Owned Subsidiary to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it 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 another Wholly Owned Subsidiary will not be deemed to be Net Cash Proceeds for purposes an Asset Sale, and a transfer of this assets that constitutes a Restricted Payment and that is permitted under Section 4.104.10 hereof will not be deemed to be an Asset Sale.
(cb) Notwithstanding Sections 4.10(a) and (b)If the Company or any Subsidiary engages in an Asset Sale, the Company or such Subsidiary shall, no later than 360 days after such Asset Sale, (i) apply all or any of the Net Proceeds therefrom to repay Indebtedness that ranks pari passu with the Notes and its Restricted Subsidiaries will be permitted to consummate an is secured by the assets disposed of in the Asset Sale without complying or to repay Bank Debt in accordance with such Sections to the extent that:
applicable provisions thereof, (1ii) at least 75% invest all or any part of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by Net Proceeds therefrom in the lines of business of the Company or any of its Restricted Subsidiaries in connection with immediately prior to such investment or (iii) any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions combination of Sections 4.10(aclauses (i) and (b)ii) above. The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation amount of such Inversion Transaction; Net Proceeds not applied or invested as provided in this paragraph (iib) immediately following such Inversion Transactionwill constitute “Excess Proceeds.”
(c) When the aggregate amount of Excess Proceeds equals or exceeds $5,000,000, the Company shall apply be required to S&P and ▇▇▇▇▇’▇ make an offer to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; purchase (iiian “Asset Sale Offer”) immediately following such Inversion Transactionfrom all Holders, the Company’s Consolidated Fixed Charge Coverage Ratio is at least an aggregate principal amount of Notes equal to the Consolidated Fixed Charge Coverage Ratio immediately prior amount of such Excess Proceeds as follows:
(i) The Company shall make an Asset Sale Offer to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) all Holders in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply accordance with the procedures set forth in this Indenture. Section 4.12 to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased out of the amount (the “Asset Sale Payment Amount”) of such Excess Proceeds.
(ii) The notice offer price for the Notes shall be payable in cash in an amount equal to 100% of the principal amount of the Notes tendered pursuant to such Asset Sale Offer, plus accrued and unpaid interest and Additional Interest, if any, to the Holders shall contain all instructions and materials necessary to enable date such Holders to tender Asset Sale Offer is consummated (the “Asset Sale Purchase Price”), in accordance with the procedures set forth in this Section 4.12. To the extent that the aggregate Asset Sale Purchase Price of Notes tendered pursuant to an Asset Sale Offer is less than the Asset Sale Payment Amount relating thereto (such shortfall constituting a “Net Proceeds Deficiency”), the Company may use such Net Proceeds Deficiency, or a portion thereof, for general corporate purposes.
(iii) If the aggregate Asset Sale Purchase Price of Notes validly tendered and not withdrawn by holders thereof exceeds the Asset Sale Payment Amount, Notes to be purchased shall be selected on a pro rata basis.
(iv) Upon completion of such Asset Sale Offer in accordance with the foregoing provisions, the amount of Excess Proceeds with respect to which such Asset Sale Offer was made shall be deemed to be zero. In the event that any other Indebtedness of the Company which ranks pari passu with the Notes (“Other Debt”) requires an offer to purchase to be made to repurchase such Other Debt upon the consummation of an Asset Sale, the Company may apply the Excess Proceeds to both purchase such Other Debt and to make an Asset Sale Offer, provided, that the purchase price of such Other Debt does not exceed 100% of the aggregate principal amount or accreted value thereof plus interest thereon. Such With respect to any Excess Proceeds, the Company shall make the Asset Sale Offer in respect thereof at the same time as the analogous offer to purchase is made pursuant to any Other Debt and the purchase date in respect thereof shall be the same as the purchase date in respect thereof pursuant to any Other Debt. With respect to any Asset Sale Offer effected pursuant to this Section 4.12, to the extent the aggregate principal amount of Notes and Other Debt, if any, tendered pursuant to such Asset Sale Offer and the concurrent offer to purchase with respect to such Other Debt exceeds the Excess Proceeds, such Notes and Other Debt, if any, shall be purchased pro rata based on the aggregate principal amount of such Notes and such Other Debt tendered by each holder thereof.
(d) If the Company is required to make an Asset Sale Offer, the Company shall, within 30 days following the date specified in clause (c) above, notify the Trustee thereof and give written notice shall stateof such Asset Sale Offer to each Holder by first-class mail, postage prepaid, at the address of such Holder appearing in the register maintained by the Registrar, stating:
(1) that the Net Proceeds an Asset Sale Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment4.12;
(2) that such Holders have the right to require the Company to apply the Excess Proceeds to repurchase the Notes at a purchase price (including in cash equal to 100% of the principal amount of thereof plus accrued and unpaid interest) and , if any, to the purchase date (which shall be no earlier than 30 days and not later than 60 days from the Net date such notice is mailed (the “Excess Proceeds Offer Payment Date”);
(3) that any Note not tendered or accepted for payment will continue to accrue interest if interest is then accruinginterest;
(4) that, unless the Company defaults in making payment therefor, that any Note Notes accepted for payment pursuant to the Net Proceeds Asset Sale Offer shall cease to accrue interest after the Net Excess Proceeds Offer Payment Date;
(5) that Holders electing accepting the offer to have a Note their Notes purchased pursuant to a Net Proceeds the Asset Sale Offer will be required to surrender the NoteNotes, 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 Business Day preceding the Net Excess Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election acceptance of the Asset Sale Offer if the Paying Agent receives, not later than 5:00 p.m., New York City time, the close of business on the second third Business Day preceding the Net Excess Proceeds Offer Payment Date, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his or her election to have such Note Notes purchased; and;
(7) that if the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice aggregate principal amount of Notes surrendered by Holders exceeds the Net Proceeds Offeramount of Excess Proceeds, Holders may elect Company shall select the Notes to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis so that the aggregate amount of Notes so purchased equals the amount of Excess Proceeds (based on amounts tendered) with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased);
(8) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered; provided that each Note purchased and each such new Note issued shall be in an aggregate original principal amount in denominations of $1,000 or integral multiples thereof;
(9) the calculations used in determining the amount of Excess Proceeds to be applied to the purchase of such Notes;
(10) any other procedures that a Holder must follow to accept an Asset Sale Offer or effect withdrawal of such acceptance; and
(11) the name and address of the Paying Agent. On the Excess Proceeds Payment Date, the Company shall, to the extent lawful, (1) accept for payment, on a pro rata basis to the extent necessary, Notes or portions thereof tendered pursuant to the Asset Sale Offer, (2) deposit with the Paying Agent US legal tender sufficient to pay the purchase price plus accrued and unpaid interest, if any, on the Notes to be purchased or portions thereof, (3) deliver or cause to be delivered to the Trustee Notes so 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 Paying Agent shall promptly mail to each Holder so accepted payment in an amount equal to the Net Proceeds Offer Amount purchase price for such Notes, and the Company shall execute and issue, and the Trustee shall promptly authenticate and make available for delivery to such Holder, a new Note equal in principal amount to any unpurchased portion of the Notes surrendered; provided that each Note purchased and each such new Note issued shall be in an original principal amount in denominations of $1,000 or integral multiples thereof.
(if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. e) 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 a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis Section 4.12, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.12 by virtue thereof.
Appears in 1 contract
Sources: Indenture (Healthsouth Corp)
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 Asset Sale unless:
(1including the sale of any of the Capital Stock of any Restricted Subsidiary) providing for Net Proceeds in excess of $2,500,000 unless at least 75% of the Net Proceeds from such Asset Sale are applied (in any manner otherwise permitted by this Indenture) to one or more of the following purposes in such combination as the Company shall elect: (i) an investment in another asset or business in the applicable same line of business as, or a line of business similar to that of, the line of business of the Company and its Restricted Subsidiary, as the case may be, receives consideration Subsidiaries at the time of the Asset Sale; provided that such investment occurs on or prior to the 365th day following the date of such Asset Sale at least equal (the "Asset Sale Disposition Date"), (ii) to reimburse the Company or its Subsidiaries for expenditures made, and costs incurred, to repair, rebuild, replace or restore property subject to loss, damage or taking, to the fair market value extent that the Net Proceeds consist of insurance proceeds received on account of such loss, damage or taking, (iii) the purchase, redemption or other prepayment or repayment of outstanding Senior Indebtedness of the assets sold Company or otherwise disposed Indebtedness of (as determined in good faith by the Company’s Board of Directors);'s Restricted Subsidiaries on or prior to the 365th day following the Asset Sale Disposition Date or (iv) an Offer expiring on or prior to the Purchase Date.
(2b) The Company shall not, and shall not permit any Restricted Subsidiary to, directly or indirectly, consummate an Asset Sale unless at least 75% of the consideration thereof received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash, cash equivalents or Cash Equivalents and shall be received at the time of such dispositionmarketable securities; provided that, solely for purposes of this clause calculating such 75% of the consideration, the amount of (2i) any securitiesliabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto, excluding contingent liabilities and trade payables), of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Senior Notes) that are assumed by the transferee of any such assets and (ii) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly, but in no event more than 30 days after receipt, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash received), shall be deemed to be cash and cash equivalents for purposes of this provision. Any Net Proceeds from any Asset Sale that are not applied or Cash Equivalents receivedinvested as provided in Section 4.14(a) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; andshall constitute "Excess Proceeds."
(3c) upon When the consummation aggregate amount of Excess Proceeds exceeds $10,000,000 (such date being an "Asset SaleSale Trigger Date"), 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 either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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, of Senior Notes 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, purchase the maximum principal amount of the Senior Notes and Pari Passu Indebtedness then outstanding that may be purchased with the Net Proceeds Offer Amount out of Excess Proceeds, at a an offer price in cash in an amount equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchased, thereof plus any accrued and unpaid interest thereonand Liquidated Damages, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may bePurchase Date, 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. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice .
(d) To the extent that substantially concurrently with being required to make an Offer to the Holders holders of the Senior Notes on account of an Asset Sale, the Company is required to make a similar Offer to holders of any other Indebtedness ranking pari passu with the Senior Notes (including without limitation the Discount Notes), the Excess Proceeds allocable to each such Offer shall contain all instructions be allocated as nearly as practicable pro rata as between the Discount Notes and materials necessary to enable such Holders to tender the Senior Notes pursuant to in accordance with the Net Proceeds Offer. Such notice shall state:respective aggregate principal amount or Accreted Value thereof, as the case may be.
(1e) To the extent that any Excess Proceeds remain after completion of an Offer, the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted Company may use such remaining amount for payment;general corporate purposes.
(2f) If the purchase price (including aggregate principal amount of Senior Notes surrendered by Holders thereof exceeds the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the HolderExcess Proceeds, the principal amount of Trustee shall select the Senior Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for basis, by lot or by a period of 20 business days or such longer period as may be required by law. The Company shall comply method that complies with the requirements of Rule 14e-1 under any stock exchange on which the Exchange Act Senior Notes are listed and any other securities laws that the Trustee considers fair and regulations thereunder appropriate.
(g) Upon completion of an Offer related to an Asset Sale, the amount of Excess Proceeds shall be reset at zero.
(h) Notwithstanding the foregoing, to the extent that any or all of the Net Proceeds of an Asset Sale is prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such laws and regulations are applicable in connection with the repurchase of Notes Net Proceeds so affected will not be required to be applied pursuant to a Section 4.14, but may be retained for so long, but only for so long, as the applicable local law prohibits repatriation to the United States. The Company will promptly take all reasonable actions required by the applicable local law to permit such repatriation, and once such repatriation of any affected Net Proceeds Offer. To is not prohibited under applicable local law, such repatriation will be immediately effected and such repatriated Net Proceeds will be applied in the extent that manner set forth above as if such Asset Sale had occurred on the provisions date of any securities laws or regulations conflict with thisrepatriation.
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:
(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 's Board of Directors);
(2) at least 75% (or 100% in the case of an Asset Sale of Collateral) 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 or Cash Equivalents and shall be is received at the time of such disposition; disposition (provided that, for purposes that (A) the amount of this clause any liabilities of the Company or any such Restricted Subsidiary (2other than liabilities that are by their terms subordinated to the Notes or any Guarantee thereof) that are assumed by the transferee of any such assets and (B) any securities, notes securities or other obligations received by the Company or any such Restricted Subsidiary from in exchange for any such transferee assets (other than assets which constitute Collateral) that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days after the consummation of such Asset Sale (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will shall be considered “cash” or “Cash Equivalents”deemed to be cash for purposes of this provision); and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 360 days of receipt thereof either:
(aA) to permanently reduce the extent such Asset Sale involves assets that do not constitute Collateral, to (i) prepay any Secured Indebtedness under the Credit Agreement and, in the case of any such Secured Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facilityfacility and/or (ii) make a Permitted Investment;
(bB) 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”"); orprovided that any Replacement Assets acquired with any Net Cash Proceeds of an Asset Sale of Collateral (which shall consist of Real Property, equipment or other fixed assets) shall be owned by the Company or a Guarantor and shall not be subject to any Liens other than Permitted Liens and the Company or such Guarantor, as the case may be, shall execute and deliver to the Trustee such Security Documents or other instruments as shall be reasonably necessary to cause such Replacement Assets to become subject to the Lien of the applicable Security Documents; and/or
(cC) a combination of prepayment and investment permitted by the foregoing clauses (3)(a3)(A) and (3)(b3)(B).
(b) On the 366th 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 Section 4.10(a) (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(a3)(A), (3)(b3)(B) and (3)(c3)(C) of Section 4.10(a) or the last proviso of this paragraph (each, a) (each a “"Net Proceeds Offer Amount”") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “a "Net Proceeds Offer”") to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “a "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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to the Net Proceeds Offer Amount at a an offer price in cash 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 purchasepurchase (subject to the right of Holders of record on a record date to receive interest on the relevant interest payment date in accordance with the procedures set forth herein); 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 which does not involve Collateral 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. Pending application of the Net Cash Proceeds, the Net Cash Proceeds from Asset Sales of Collateral shall be deposited in the Collateral Account. To the extent that the aggregate amount of Notes tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may apply any remaining Net Cash Proceeds to any purpose consistent with this Indenture and, following the consummation of each Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset to zero.
(c) The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 10 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 10 million, shall be applied as required pursuant to this Section 4.10(bthe preceding paragraph)). In the event of the transfer of substantially all .
(but not alld) of the property Notwithstanding paragraphs (a) 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes (b) of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections paragraphs to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting to the extent such Asset Sale consists of Collateral, the Replacement Assets received shall be owned by the Company or a Guarantor and shall not be subject to any of its Restricted Subsidiaries in connection with any Asset Sale permitted Liens other than Permitted Liens and the Company or such Guarantor shall execute and deliver to the Trustee such Security Documents or other instruments as shall be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds reasonably necessary to cause such property or assets to become subject to the provisions Lien of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:applicable Security Documents.
(1e) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The Company shall 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 thisthe provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue thereof.
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:
unless (1i) 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 's Board of Directors);
, and (2ii) 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 or Cash Equivalents and shall be received at the time of such dispositionEquivalents; provided that, for purposes that (A) the amount of this clause any liabilities of the Company or any such Restricted Subsidiary (2other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any securities, notes or other obligations such assets and (B) the fair market value of any marketable securities received by the Company or any such Restricted Subsidiary from in exchange for any such transferee assets that are promptly converted into cash shall be deemed to be cash for purposes of this provision; and provided, further, that in no event shall the aggregate fair market value at the time of receipt of con- sideration received by the Company or such Restricted Subsidiary into in a form other than cash or Cash Equivalents (to the extent exceed 5% of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon Company's Consolidated Total Assets. In the consummation event of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 360 days of receipt thereof either:
either (aA) to permanently reduce Indebtedness repay or prepay any indebtedness under the Credit Agreement andAgreement, in the case of any such Indebtedness under any revolving credit facility, and effect a permanent reduction in the availability under such revolving credit facility;
thereof, (bB) to make an investment in either (x) properties and assets that replace the properties and assets that were the subject of such Asset Sale or in (y) any properties and or 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 similar or reasonably related thereto or in the capital stock of any entity a majority of whose assets consists of the properties or assets described under (“x) or (y) ("Replacement Assets”"); or
, or (cC) to a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) On . After 360 days from the 366th day after an Asset Sale or such earlier date, if any, as on which 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 Section 4.10(a) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, a “"Net Proceeds Offer Amount”") shall be applied by exceeds $7,500,000 (the "Net Proceeds Offer Trigger Date"), the Company or such Restricted Subsidiary to shall make an offer to purchase (the “"Net Proceeds Offer”") to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to the Net Proceeds Offer Amount at a price equal to 100% of the principal amount Accreted Value 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 . 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 4.10Section. The Company may defer To the extent that the aggregate Accreted Value of Notes tendered pursuant to such Net Proceeds Offer is less than the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 may use such deficiency for general corporate purposes. If the aggregate Accreted Value of Notes validly tendered and not constitute a Change of Controlwithdrawn by Holders thereof exceeds the Net Proceeds Offer Amount, the successor corporation shall Notes to be deemed to have sold the properties and assets purchased will be selected on a pro rata basis. Upon completion of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were an Asset Sale. In additionNet Proceeds Offer, the fair market value amount of such properties and assets of Net Proceeds Offer Amount will be reset to zero. Notwithstanding the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b)immediately preceding paragraph, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections paragraphs to the extent that:
(1i) at least 7580% of the consideration for such Asset Sale constitutes Replacement Assets; and
Assets and (2ii) such Asset Sale is for fair market value; provided that any consideration consid- eration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) paragraph shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03preceding paragraph. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 not less than 30 days nor more than 45 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The Upon receiving notice to of the Net Proceeds Offer, Holders shall contain all instructions and materials necessary to enable such Holders may elect to tender their Notes pursuant to in whole or in part in integral multiples of $1,000 principal amount at maturity in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding the Net Proceeds Offer Amount, Notes of tendering Holders will be purchased on a pro rata basis (based on amounts tendered). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law, and the purchase of such Note shall be consummated within 60 days following the mailing of the Net Proceeds Offer. Such notice The notice, which shall govern the terms of the Net Proceeds Offer, shall include such disclosures as are required by law and shall state:
(1i) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment4.15;
(2ii) the purchase price (including equal to 100% of the amount Accreted Value thereof plus of accrued and unpaid interest, if any) and the purchase date (which shall to be paid for Notes purchased pursuant to the Net Proceeds Offer and the Net Proceeds Payment Date);
(3iii) that any Note not tendered for payment will continue to accrete and accrue interest if interest is then accruingin accordance with the terms thereof;
(4iv) that, unless the Company defaults in on making payment thereforthe payment, any Note accepted for payment pursuant to the Net Proceeds Offer shall cease to accrete and accrue interest after the Net Proceeds Offer Payment Date;
(5v) that Holders electing accepting the Offer to have a Note their Notes purchased pursuant to a the Net Proceeds Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, their Notes 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 Excess Net Proceeds Offer Payment Date;
(6vi) that Holders will be entitled to withdraw their election acceptance if the Paying Agent receives, not later than 5:00 p.m., New York City time, the close of business on the second Business Day preceding prior to the Net Proceeds Offer Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Notes purchased;
(vii) that Holders whose Notes are purchased only in part will be issued new Notes in a principal amount at maturity equal to the unpurchased portion of the Notes surrendered; provided that each Note purchasedpurchased and each such new Note issued shall be in an original principal amount at maturity in denominations of $1,000 and integral multiples thereof;
(viii) any other procedures that a Holder must follow to accept a Net Proceeds Offer or effect withdrawal of such acceptance; and
(7ix) the circumstances name and relevant facts regarding such address of the Paying Agent. On the Net Proceeds OfferPayment Date, the Company shall (i) accept for payment Notes or portions thereof tendered pursuant to the Net Proceeds Offer in accordance with this Section 4.15, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the Net Proceeds Offer Amount to be purchased in accordance with this Section 4.15 and (iii) deliver to the Trustee Notes so accepted together with an Officers' Certificate stating the Notes or portions thereof tendered to and accepted for payment by the Company. Upon receiving For purposes of this Section 4.15, the Trustee shall act as the Paying Agent. The Paying Agent shall promptly (but in any case no later than 10 calendar days after the Net Proceeds Payment Date) mail or deliver to the Holders of Notes so accepted payment in an amount equal to the purchase price for such Notes, and the Company shall execute and issue, and the Trustee shall promptly authenticate and mail to such Holders, a new Note equal in principal amount at maturity to any unpurchased portion of the Note surrendered; provided that each such new Note shall be issued in an original principal amount at maturity in denominations of $1,000 and integral multiples thereof. The Company will send to the Trustee and the Holders of Notes on or as soon as practicable after the Net Proceeds Payment Date a notice setting forth the results of the Net Proceeds Offer, Holders may elect to tender their . Any Notes in whole not so accepted shall be promptly mailed or in part in integral multiples of $1000 in exchange for cash. To delivered by the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal Company to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by lawHolder thereof. The Company shall 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 thisSection 4.15, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.15 by virtue thereof.
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:
unless (1i) 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 's Board of Directors);
; (2ii) at least 7580% 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 or Cash Equivalents and shall be is received at the time of such disposition; provided thatprovided, for purposes however, that the amount of this clause (2A) any securitiesliabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or the notes thereto), of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee in such Asset Sale and from which the Company or such Restricted Subsidiary is released and (B) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 10 business days by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will ), shall be considered “cash” or “Cash Equivalents”deemed to be cash for the purposes of this provision; and
and (3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 270 days of receipt thereof either:
either (aA) to permanently reduce prepay any Indebtedness under ranking at least pari passu with the Credit Agreement Notes or the Guarantees 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;
, (bB) 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”"); or
, or (cC) a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) . On the 366th 271st 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)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) the next preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, 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 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to 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 Company or any Restricted Subsidiary of the CompanySubsidiary, 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 4.104.15. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 5.0 million resulting from one or more Asset Sales (at which time, time the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 5.0 million, shall be applied as required pursuant to this Section 4.10(bparagraph)). To the extent the aggregate amount of the Notes tendered pursuant to the Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such deficiency for general corporate purposes. Upon completion of such offer to purchase, the Net Proceeds Offer Amount shall be reset at zero. 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 the Restricted Subsidiaries not so transferred for purposes of this Section 4.10 covenant, and shall comply with the provisions of this Section 4.10 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 the Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) covenant. Notwithstanding Sections 4.10(a) and (b)the two immediately preceding paragraphs, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections paragraphs to the extent that:
(1i) at least 7580% of the consideration for such Asset Sale constitutes Replacement Assets; and
Assets and (2ii) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its the Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) paragraph shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03two preceding paragraphs. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The Upon receiving notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. Such notice To the extent Holders properly tender Notes in an amount exceeding the Net Proceeds Offer Amount, Notes of tendering Holders will be purchased on a pro rata basis (based on amounts tendered). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The notice, which shall govern the terms of the Net Proceeds Offer, shall include such disclosures as are required by law and shall state:
(1i) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment4.15;
(2ii) the purchase price (including the amount of accrued interest, if any) and the purchase date (which shall to be paid for Notes purchased pursuant to the Net Proceeds Offer and the Net Proceeds Payment Date);
(3iii) that any Note not tendered for payment will continue to accrue interest if interest is then accruingin accordance with the terms thereof;
(4iv) that, unless the Company defaults in on making payment thereforthe payment, any Note accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Date;
(5v) that Holders electing accepting the Offer to have a Note their Notes purchased pursuant to a the Net Proceeds Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, their Notes 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 Net Proceeds Offer Payment Date;
(6vi) that Holders will be entitled to withdraw their election acceptance if the Paying Agent receives, not later than 5:00 p.m., New York City time, the close of business on the second Business Day preceding prior to the Net Proceeds Offer Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Notes purchased;
(vii) that Holders whose Notes are purchased only in part will be issued new Notes in a principal amount equal to the unpurchased portion of the Notes surrendered; provided that each Note purchasedpurchased and each such new Note issued shall be in an original principal amount in denominations of $1,000 and integral multiples thereof;
(viii) any other procedures that a Holder must follow to accept a Net Proceeds Offer or effect withdrawal of such acceptance; and
(7ix) the circumstances name and relevant facts regarding such address of the Paying Agent. On the Net Proceeds OfferPayment Date, the Company shall (i) accept for payment Notes or portions thereof tendered pursuant to the Net Proceeds Offer in accordance with this Section 4.15, (ii) deposit timely 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 in accordance with this Section 4.15 and (iii) deliver to the Trustee Notes so accepted together with an Officers' Certificate stating the Notes or portions thereof tendered to and accepted for payment by the Company. Upon receiving For purposes of this Section 4.15, the Trustee shall act as the Paying Agent. The Paying Agent shall promptly mail or deliver to the Holders of Notes so accepted payment in an amount equal to the purchase price for such Notes, and the Company shall execute and issue, and the Trustee shall promptly authenticate and mail to such Holders, a new Note equal in principal amount to any unpurchased portion of the Note surrendered; provided that each such new Note shall be issued in an original principal amount in denominations of $1,000 and integral multiples thereof. The Company will send to the Trustee and the Holders of Notes on or as soon as practicable after the Net Proceeds Payment Date a notice setting forth the results of the Net Proceeds Offer, Holders may elect to tender their . Any Notes in whole not so accepted shall be promptly mailed or in part in integral multiples of $1000 in exchange for cash. To delivered by the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal Company to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by lawHolder thereof. The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act Act, if applicable, 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 thisthe "Asset Sale" provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.15 by virtue thereof.
Appears in 1 contract
Sources: Indenture (Penn National Gaming Inc)
Limitation on Asset Sales. (a) Except as provided in Section 4.18(b), the Company shall not, and shall not permit any Restricted Subsidiary to, Dispose of any of its Property or assets (including, without limitation, receivables and leasehold interests), whether now owned or hereafter acquired, or, in the case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s Capital Stock to any Person, except for:
(1) the Disposition of obsolete or worn out property in the ordinary course of business;
(2) the sale of inventory in the ordinary course of business;
(3) the sale or issuance of Capital Stock in any Restricted Subsidiary of the Company to the Company, or of Capital Stock of any of the Company’s Restricted Subsidiaries to a Restricted Subsidiary;
(4) the Disposition of Cash Equivalents and Permitted Peso Investments in the ordinary course of business; and
(5) the sale or lease of capacity on telecommunications satellite transponders in the ordinary course of business on an arm’s-length basis, but not including sales or end-of life leases of capacity on telecommunications satellite transponders that involve the sale or lease to a buyer or lessee (or a combination of related buyers or lessees) of all or substantially all of the capacity on one or more satellites in one or a series of related transactions. The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an any Asset Sale unless:
unless (1i) 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);
(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 or Cash Equivalents and shall be received at the time of such disposition; provided that, for purposes of this clause (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by (including the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement and, in the case amount of any such Indebtedness under any 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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 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 such Pari Passu released Indebtedness) (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 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 4.10. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; Fair Market Value of the assets sold or disposed of and (ivii) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 80% of additional Indebtedness the consideration received (other than Permitted excluding the amount of any released Indebtedness) consists of cash or Cash Equivalents.
(b) After all of the First Priority Obligations and all Refinanced FPS have been paid in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register full or otherwise discharged, all proceeds of Holders within 25 days following the Net Proceeds Offer Trigger Dateany Disposition, with a copy to the Trusteeissuance, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
or sale not expressly permitted under clauses (1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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;
through (5) that Holders electing to have above shall be held by the Second Priority Collateral Trustee in a Note purchased pursuant to Second Priority Collateral Trustee Segregated Account as cash collateral for the Second Priority Obligations, or, if permitted under Section 4.25, in a Net Proceeds Offer will be required to surrender Company Segregated Account, until applied in payment of the Note, Second Priority Obligations as a Mandatory Redemption under Section 3.2 of this Indenture or otherwise disbursed in accordance 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 Second Priority Documents. Nothing in the notice prior to the close of business on the third 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 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer this Section 4.18 shall remain open for a period of 20 business days or such longer period prohibit any Asset Sale so long as may be required by law. The Company shall comply with the requirements of Rule 14e-1 under this Indenture regarding Redemption, including without limitation the Exchange Act and any other securities laws and regulations thereunder to payment of the extent such laws and regulations Redemption Price, are applicable satisfied in connection with the repurchase of Notes pursuant and as a condition to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thissuch Asset Sale.
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 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);
(2ii) 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 or cash, Cash Equivalents and/or Replacement Assets (as defined below) (or a combination thereof) and shall be is received at the time of such disposition; provided that, for purposes
(A) the amount of this clause any liabilities (2as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any securities, notes such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Securities) that are assumed by the transferee of any such assets;
(B) the fair market value of any 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 Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 180 days after receipt will be considered “cash” or “Cash Equivalents”such Asset Sale; and
(3C) any of the assets described in clauses (iii)(B) and (C) shall be deemed to be cash for purposes of this provision; and
(iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(aA) to permanently reduce Indebtedness repay (i) any Obligations under the Credit Agreement and, in the case of any such Indebtedness under any revolving credit facility, and effect a permanent reduction in the availability under such revolving credit facilityCredit Agreement and (ii) in the case of an Asset Sale by a Restricted Subsidiary, Obligations of such Restricted Subsidiary;
(bB) to make an investment invest or commit to invest 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”); or;
(cC) to acquire or commit to acquire all or substantially all of the assets of, or a majority of the voting Capital Stock of a Permitted Business; and/or
(D) a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A) through (iii)(C); provided that in the case of a commitment under clauses (B) and (3)(b)C) above made prior to the expiration of such 365-day period, such investment or acquisition shall be deemed to comply with this covenant if consummated within six months after such commitment.
(b) 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 When the Net Cash Proceeds relating to such from Asset Sale Sales not applied or invested as set forth provided in clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) the preceding paragraph total $5.0 million or more (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this paragraph (each, a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to will, within 30 days, make an offer to purchase (the “Net Proceeds Offer”) to all Holders and, to the extent required by the terms of any Pari Passu IndebtednessDebt, an offer to purchase to all holders of such Pari Passu IndebtednessDebt, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 45 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such any Pari Passu Indebtedness) (and holders of any such Pari Passu IndebtednessDebt) on a pro rata basis, the maximum that amount of Notes Securities (and Pari Passu Indebtedness that may be purchased with Debt) equal to the Net Proceeds Offer Amount at a price equal to 100% of the principal amount of the Notes Securities (and Pari Passu Indebtedness Debt) to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than as contemplated by clause 2(b) above and 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. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales covenant.
(at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). c) 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 5.01Article V hereof, 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 4.10 covenant, and shall comply with the provisions of this Section 4.10 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 4.10covenant.
(cd) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 30 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes Securities in whole or in part in a principal amount of $25 and integral multiples of $1000 25 in excess thereof in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness Securities in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness Securities of tendering Holders will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). 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 Indenture. Upon completion of each Net Proceeds Offer, the amount of Net Cash Proceeds will be reset at zero.
(e) The Company shall 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 Securities pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis Section 4.05 or Section 3.03, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.05 or Section 3.03 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 Subsidiary to, consummate an make any Asset Sale unless:
unless (1i) the Company or the applicable such Restricted Subsidiary, as the case may be, Subsidiary 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 subject to such Asset Sale, (as determined in good faith by the Company’s Board of Directors);
(2ii) 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 or Cash Equivalents and shall be received at the time of such disposition; provided that, for purposes of this clause (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 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 such Pari Passu Indebtedness) (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 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 4.10. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 7580% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by in the form of cash, Cash Equivalents or liabilities of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes or any Guaranty) that are assumed by the transferee of such assets (provided, that following such Asset Sale there is no further recourse to the Company or its Restricted Subsidiaries with respect to such liabilities), or (iii) within 180 days of such Asset Sale, the Net Proceeds thereof are (a) invested in assets related to the business of the Company or its Restricted Subsidiaries, (b) applied to repay Indebtedness under Purchase Money Obligations incurred in connection with the asset so sold or (c) to the extent not used as provided in clauses (a) or (b), applied to make an offer to purchase Notes as described below (an "Excess Proceeds Offer"); provided, that if the amount of Net Proceeds from any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken invested pursuant to an Inversion Transaction; provided that clause (ia) the Supplemental Indenture above is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transactionless than $5.0 million, the Company shall apply not be required to S&P and ▇▇▇▇▇’▇ repay Indebtedness pursuant to have its debt rating and outlook updated and clause (b) or make an offer pursuant to clause (c) above. Pending the final application of any such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion TransactionNet Proceeds, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that or any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding Restricted Subsidiary may temporarily invest such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisCash Equivalents.
Appears in 1 contract
Sources: Indenture (Fitzgeralds Gaming Corp)
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:
unless (1i) the Company or the applicable Restricted Subsidiary, as the case may be, receives its Subsidiaries receive consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets sold or otherwise disposed of (as determined included in good faith by such Asset Sale, provided the Company’s Board of Directors);
(2) at least 75% aggregate Fair Market Value of the consideration received from an Asset Sale that is not in the form of cash or Cash Equivalents shall not, when aggregated with the Fair Market Value of all other non-cash or consideration received by the Company and its Subsidiaries from all previous Asset Sales since the Issue Date that has not, prior to such date, been converted into cash or Cash Equivalents, exceed 5% of the Restricted Consolidated Tangible Assets of the Company at the time of such Asset Sale under consideration; and provided, further, that with respect to any Asset Sale to Affiliates the Company shall receive consideration consisting of not less than 75% cash or Cash Equivalents and (ii) the Company delivers to the Trustee an Officers’ Certificate certifying that such Asset Sale complies with clause (i). The amount (without duplication) of any Indebtedness (other than Subordinated Indebtedness) of the Company or such Subsidiary that is expressly assumed by the transferee in such Asset Sale and with respect to which the Company or such Subsidiary, as the case may be, from is unconditionally released by the holder of such Asset Sale Indebtedness, shall be in the form of deemed to be cash or Cash Equivalents and shall be received at the time of such disposition; provided that, for purposes of this clause (2ii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (and shall also be deemed to the extent constitute a repayment of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement and, in the case of any such Indebtedness under any revolving credit facility, effect and a permanent reduction in in, the availability under amount of such revolving credit facility;
Indebtedness for purposes of the following paragraph (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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 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 such Pari Passu Indebtedness) (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 . 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 the date of such conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Cash Available Proceeds thereof shall be applied in accordance with this Section 4.104.16. The A transfer of assets by the Company may defer to a Subsidiary or by a Subsidiary to the Net Proceeds Offer until there Company or to a Subsidiary will not be deemed to be an Asset Sale and a transfer of assets that constitutes a Restricted Investment and that is permitted under Section 4.03 will not be deemed to be an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b))Sale. 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, 5.01 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 4.10 covenant, and shall comply with the provisions of this Section 4.10 covenant with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value 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 Available Proceeds for purposes of this Section 4.10.
covenant. If the Company or any Subsidiary engages in an Asset Sale, the Company or such Subsidiary may either, no later than 360 days after such Asset Sale, (ci) Notwithstanding Sections 4.10(aapply all or any of the Net Available Proceeds therefrom to repay amounts outstanding under the Revolving Credit Facility or any other Indebtedness (other than Subordinated Indebtedness) of the Company or any Subsidiary; provided, in each case, that the related loan commitment (if any) is thereby permanently reduced by the amount of such Indebtedness so repaid or (ii) invest all or any part of the Net Available Proceeds thereof in properties and (b), assets that replace the properties or assets that were the subject of such Asset Sale or in other properties or assets that will be used in the business of the Company and its Restricted Subsidiaries as it existed on the Issue Date. The amount of such Net Available Proceeds not applied or invested as provided in this paragraph will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds equals or exceeds $10.0 million, the Company will be permitted required to consummate make an Asset Sale without complying with offer to purchase, from all Holders of the Senior Notes, an aggregate principal amount of Senior Notes equal to such Sections Excess Proceeds as follows: The Company will make an offer to purchase (a “Net Proceeds Offer”) from all Holders of the extent that:
Securities the maximum principal amount (1expressed as a multiple of $1,000) at least 75of Securities that may be purchased out of the amount (the “Payment Amount”) of such Excess Proceeds. The offer prices for the Securities will be payable in cash in an amount equal to 100% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by principal amount of the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken Securities tendered pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that , plus accrued and unpaid interest and Liquidated Damages, if any, to the date such Net Proceeds Offer is being made pursuant to this Section 4.10 and consummated (the “Offered Price”). To the extent that (subject to the provisions hereof) all Notes aggregated Offered Price of Securities tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 is less than the Payment Amount relating thereto (such shortfall constituting a “Net Proceeds Deficiency”), the Company may use such Net Proceeds Deficiency, or a portion thereof, for general corporate purposes, subject to the limitations of Section 4.03. If the aggregate Offered Price of Securities validly tendered and not withdrawn by Holders thereof exceeds the Payment Amount, Securities to be purchased will be required to surrender the Note, with the form entitled “Option selected on a pro rata basis. Upon completion 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer, the amount of Excess Proceeds remaining shall be zero. Upon receiving notice The Company will not permit any Subsidiary to enter into or suffer to exist any agreement that would place any restriction of any kind (other than pursuant to law or regulation) on the ability of the Net Proceeds Offer, Holders may elect Company to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the make a Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by lawfollowing any Asset Sale. The Company shall will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder thereunder, if applicable, in the event that an Asset Sale occurs and the Company is required to the extent such laws and regulations are applicable in connection with the repurchase of purchase Senior Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisas described above.
Appears in 1 contract
Sources: Indenture (Independent Gasoline & Oil Co of Rochester)
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 (1i) 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 's Board of Directors);
, (2ii) at least 7570% 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 or Cash Equivalents and shall be is received at the time of such disposition; provided that, for purposes of this clause and (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
either (aA) to permanently reduce Indebtedness under the Credit Agreement prepay any Senior Debt and, in the case of any such Indebtedness Senior Debt under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility;
, (bB) to make an investment in a similar business or properties and or assets that replace the business, properties and or 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”"); or
, or (cC) a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) . 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)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) the next preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, 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 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata PRO RATA basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with Securities equal to the Net Proceeds Offer Amount at a price equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness Securities to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase; providedPROVIDED, howeverHOWEVER, 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 4.105.16. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million 5,000,000 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 $10.0 million5,000,000, shall be applied as required pursuant to this Section 4.10(bparagraph)). .
(b) 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 Control6.1, 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 4.10 covenant, and shall comply with the provisions of this Section 4.10 5.16 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.105.16.
(c) Notwithstanding Sections 4.10(a5.16(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections paragraphs to the extent that:
(1i) at least 7570% of the consideration for such Asset Sale constitutes Replacement Assets; and
Assets and (2ii) such Asset Sale is for fair market value; provided PROVIDED, that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) paragraph shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(athe two preceding paragraphs.
(d) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders of such Securities within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes Securities pursuant to the Net Proceeds Offer. Such notice Offer and shall statestate the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 5.16 and that (subject to the provisions hereof) all Notes 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 Company shall select the Securities to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Securities in denominations of $1,000 or multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note Security not tendered will continue to accrue interest if interest is then accruing;
(4) that, unless (i) the Company defaults in making payment therefortherefor or (ii) such payment is prohibited pursuant to Article Four or otherwise, any Note 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 Note Security purchased pursuant to a Net Proceeds Offer will be required to surrender the NoteSecurity, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third business day 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 5:00 p.m., New York City time, on the second two Business Day preceding Days 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 Notes Securities the Holder delivered for purchase and a statement that such Holder is withdrawing his or her election to have such Note Security purchased;
(7) that Holders whose Securities were purchased only in part will be issued new securities equal in principal amount 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 $1,000 or integral multiples thereof; and
(7) 8) that the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days Business Days or such longer period as may be required by law.
(e) On or before the Net Proceeds Offer Payment Date, the Company 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 (b)(1) above, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price 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 (and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Security equal in principal amount to any unpurchased portion of the Security surrendered provided that each such new Security shall be in the principal amount of $1,000 or integral multiples thereof) unless such payment is prohibited pursuant to Article Four or otherwise. The Company will publicly announce the results of the Net Proceeds Offer on or as soon as practicable after the Net Proceeds Offer Payment Date. For purposes of this Section 5.16, the Trustee shall act as the Paying Agent.
(f) Any amounts remaining after the purchase of Securities pursuant to a Net Proceeds Offer shall be returned by the Trustee to the Company.
(g) The Company must comply with the requirements of Rule 14e-1 under the Exchange Act and any other provisions of State and federal 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 thisthe provisions of this Section 5.16, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the provisions of this Section 5.16 by virtue thereof.
Appears in 1 contract
Sources: Indenture (Color Spot Nurseries Inc)
Limitation on Asset Sales. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, consummate an make any Asset Sale unless:
Sale, unless (1a) the Company or the applicable Restricted Subsidiary, as the case may be, Subsidiary 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 sold, (as determined in good faith by the Company’s Board of Directors);
(2b) at least 7585% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from for such Asset Sale shall be in the form (other than assumption of trade Indebtedness) consists of cash or Cash Equivalents and shall be received at the time of such disposition; provided that, for purposes of this clause (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
, and (3c) upon the consummation of an Asset Sale, the Company shall applywill within 365 days of the receipt of the proceeds therefrom, either: (i) apply or cause such its Restricted Subsidiary to apply, apply the Net Cash Proceeds relating to such of any Asset Sale within 365 days of receipt thereof either:
to (a1) to permanently reduce Indebtedness under the Credit Agreement 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;
(b) to make an investment in properties and assets that replace the properties and assets that were are the subject of such Asset Sale or (2) an investment 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 Date; (ii) in the case of a sale of a store or in businesses reasonably related thereto (“Replacement Assets”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) On the 366th day after an Asset Sale or stores, deem 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 have been applied to the extent of any capital expenditures made to acquire or construct a replacement store in the general vicinity of the store sold within 365 days preceding the date of the Asset Sale; or (iii) after such Asset Sale time as set forth in clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of the accumulated Net Cash Proceeds that have not been equals or exceeds $5 million, apply or cause to be applied on or before such Net Cash Proceeds Offer Trigger Date as permitted in clauses (3)(a), (3)(b) and (3)(c) to the purchase of Section 4.10(a) or the last proviso of this paragraph (each, a “Net Proceeds Offer Amount”) shall be applied by Securities tendered to the Company or such Restricted Subsidiary to make an offer to for purchase (the “Net Proceeds Offer”) to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (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, thereof plus accrued and unpaid interest thereon, if any, thereon to the date of purchasepurchase pursuant to an offer to purchase made by the Company as set forth below (a "Net Cash Proceeds Offer"); provided, however, that if at any time any nonthe Company shall have the right to exclude from the foregoing provisions Asset Sales subsequent to the Issue Date, the proceeds of which are derived from the sale and substantially concurrent lease-cash consideration received back of a supermarket and/or related assets or equipment which is acquired or constructed by the Company or any a Restricted Subsidiary subsequent to the Issue Date; provided, however, that any such sale and substantially concurrent lease-back occurs within 270 days following such acquisition or the completion of the Companysuch construction, as the case may be, in connection with . Pending the utilization of 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. The the manner (and within the time period) described above, the Company may defer use any such Net Cash Proceeds to repay revolving loans under the Credit Facility without a permanent reduction of the commitment thereunder. Notice of a Net Cash Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer 4.20 will be mailed to the record Holders of Securities as shown on the register of Holders within 25 not less than 325 days following nor more than 365 days after the Net Proceeds Offer Trigger Daterelevant Asset Sale, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes Securities pursuant to the Net Cash Proceeds Offer. Such notice Offer and shall statestate the following terms:
(1) that the Net Cash Proceeds Offer is being made pursuant to this Section 4.10 4.20 and that (subject to the provisions hereof) all Notes Securities tendered will be accepted for payment; provided, however, that if the aggregate principal amount of Securities tendered in the Net Cash Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of the Net Cash Proceeds Offer, the Company shall select the Securities to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Securities in denominations of $1,000 or multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be no earlier than 30 days nor later than 40 days from the Net date such notice is mailed, other than as may be required by law) (the "Proceeds Offer Payment Purchase Date");
(3) that any Note Security not tendered will continue to accrue interest if interest is then accruing;
(4) that, unless the Company defaults in making payment therefor, any Note Security accepted for payment pursuant to the Net Cash Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Purchase Date;
(5) that Holders electing to have a Note Security purchased pursuant to a Net Cash Proceeds Offer will be required to surrender the NoteSecurity, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third business day Business Day prior to the Net Proceeds Offer Payment Purchase Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on two Business Days prior to the second Business Day preceding the Net Proceeds Offer Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes Securities the Holder delivered for purchase and a statement that such Holder is Hold▇▇ ▇▇ withdrawing his election to have such Note Security purchased;
(7) that Holders whose Securities were purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; provided that each Security purchased and each new Security issued shall be in an original principal amount of $1,000 or integral multiples thereof; and
(7) the circumstances and relevant facts regarding such 8) that each Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Cash Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal is required to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of at least 20 business days Business Days or such longer period as may be required by law. On or before the Proceeds Purchase Date, the Company shall (i) deposit with the Paying Agent coin or currency of the United States of America as at the time of payment shall be the legal tender for the payment of public and private debts sufficient to pay the purchase price of all Securities to be purchased and (ii) 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 (and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Security equal in principal amount to any unpurchased portion of the Security surrendered). The Company will cause to be mailed to each Holder the results of the Net Cash Proceeds Offer on or as soon as practicable after the Proceeds Purchase Date. For purposes of this Section 4.20, the Trustee shall act as the Paying Agent. Any amounts remaining after the purchase of Securities pursuant to a Net Cash Proceeds Offer shall be returned by the Trustee to the Company. 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 purchase of Notes the Securities pursuant to a Net Cash Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisprovisions under this Section 4.20, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.20 by virtue thereof.
Appears in 1 contract
Sources: Indenture (Dart Group Corp)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company or the such applicable Restricted 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 Fair Market Value of the assets sold or otherwise disposed of of; (as determined in good faith by the Company’s Board of Directors);
(2ii) at least 75not less than 80% of the consideration received by the Company or the such applicable Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of (A) cash or Cash Equivalents Equivalents, or (B) Replacement Assets, and shall be in each case set forth in subclauses (A) and (B) of this clause (a)(ii), is received at the time of such sale or other disposition; provided that, for purposes PROVIDED that the amount of this clause (1) any Debt (other than subordinated Debt) of the Company or any such applicable Restricted Subsidiary that is actually assumed by the transferee in such Asset Sale and from which the Company and its Restricted Subsidiaries are fully and unconditionally released and (2) any securities, notes or other obligations securities received by the Company or any such applicable Restricted Subsidiary from such transferee that which are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within ten Business Days of such Asset Sale (to the extent of the cash or Cash Equivalents received) within 30 days after receipt ), will be considered “cash” or “Cash Equivalents”deemed to be cash for purposes of this clause (a)(ii); and
and (3iii) upon the consummation of an Asset Sale, Sale Proceeds received by the Company shall applyor such Restricted Subsidiary, as the case may be, are applied, at the option of the Company or cause such Restricted Subsidiary, (A) to prepay, repay or purchase indebtedness under the Credit Facilities or any other secured Debt of the Company or such Restricted Subsidiary to apply, or the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
Other Senior Notes; or (aB) to permanently reduce Indebtedness under the Credit Agreement 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;
(b) to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale are used or in properties and assets (including Capital Stock) that will be used are useful in the business of the Company and or its Restricted Subsidiaries or in businesses reasonably similar to or ancillary to the business of the Company or its Restricted Subsidiaries as existing conducted at the time of such Asset Sale; PROVIDED that (1) such investment occurs or (2) the Company or any such Restricted Subsidiary enters into contractual commitments to so apply such Asset Sale Proceeds, subject only to customary conditions (other than the obtaining of financing), in each case, within 365 days following the receipt of such Asset Sale Proceeds; or (C) if on such 365th day the Issue Date or Available Asset Sale Proceeds exceed $15,000,000, the Company shall apply an amount equal to the Available Asset Sale Proceeds to an offer to repurchase the Notes (and, at its option, to an offer to repurchase other equal and ratable Debt), at a purchase price in businesses reasonably related thereto cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the purchase date (“Replacement Assets”an "EXCESS PROCEEDS OFFER"). If an Excess Proceeds Offer is not fully subscribed, the Company may retain and use for general corporate purposes the portion (any such portion, a "DEFICIENCY") of the Available Asset Sale Proceeds not required to repurchase Notes. Upon completion of any Excess Proceeds Offer, the amount of Available Asset Sale Proceeds shall be reset to zero; or
PROVIDED that the amount of the 25% Available Asset Sale Proceeds (cas defined below) a combination shall constitute Available Asset Sale Proceeds for purposes of prepayment and investment permitted by the foregoing clauses first Excess Proceeds Offer that is made after August 14, 2006 (3)(a) and (3)(bthe "ASSET SALE PROCEEDS MEASUREMENT DATE").
(b) On Even if the 366th day after Company completes an Asset Sale, in no event shall the Company use or be required to use Available Asset Sale Proceeds to purchase more than 25% of the original aggregate principal amount of the Notes on or prior to the Asset Sale Proceeds Measurement Date. If the aggregate Available Asset Sale Proceeds (disregarding any resetting to zero as described in paragraph (a) above) resulting from Asset Sales occurring on or prior to the Asset Sale Proceeds Measurement Date, less any Deficiencies resulting from any Excess Proceeds Offers made by the Company on or prior to such earlier date, if anyexceed 25% of the original aggregate principal amount of the Notes (such excess being the "25% AVAILABLE ASSET SALE PROCEEDS"), then the Company shall make an Excess Proceeds Offer in accordance with the foregoing provisions (i) promptly after the Asset Sale Proceeds Measurement Date, in the event the amount of the 25% Available Asset Sale Proceeds exceeds $15,000,000 or (ii) at such time as the Board of Directors amount of the 25% Available Asset Sale Proceeds together with Available Asset Sale Proceeds realized after the Asset Sale Proceeds Measurement Date exceeds $15,000,000, in the event the amount of the 25% Available Asset Sale Proceeds is less than $15,000,000.
(c) If the Company or is required to make an Excess Proceeds Offer, the Company shall (i) notify the Trustee thereof at least five Business Days prior to the commencement of the Excess Proceeds Offer and (ii) send by first-class mail, postage prepaid, within 30 days following the date specified in clause (a)(iii)(C) of this Section 4.10, a notice to the Trustee and to each Holder, at the address appearing in the register maintained by the Registrar, stating the information set forth below. The Excess Proceeds Offer shall remain open for a period of 20 Business Days following its commencement (the "OFFER PERIOD"). The notice, which shall govern the terms of the Excess Proceeds Offer, shall state:
(1) that such Restricted Subsidiary determines not Holders have the right to require the Company to apply the Net Cash Proceeds relating to such Available Asset Sale as set forth in clauses (3)(a)Proceeds, (3)(bsubject to the limitations under Section 4.10(b) and (3)(c) of Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 andhereof, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of repurchase 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 such Pari Passu Indebtedness) (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 purchase price in cash equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchasedNotes, plus accrued and unpaid interest thereoninterest, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this 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 $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; andpurchase date;
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Excess Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered length of time the Excess Proceeds Offer will be accepted for paymentremain open;
(23) the purchase price (including the amount of accrued interest) and the purchase date (which shall be a Business Day no earlier than 30 days nor later than 60 days from the Net Proceeds Offer Payment Datedate such notice is mailed);
(34) that any Note not tendered or accepted for payment will continue to accrue interest if interest is then accruinginterest;
(45) that, unless the Company defaults in making a payment thereforpursuant to the Excess Proceeds Offer, any Note Notes accepted for payment pursuant to the Net Excess Proceeds Offer shall cease to accrue interest after the Net Proceeds expiration of the Offer Payment DatePeriod;
(56) that Holders electing to have a Note purchased pursuant to a Net any 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 Business Day preceding the Net Proceeds Offer Payment Datepurchase date;
(67) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding expiration of the Net Proceeds Offer DatePeriod, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and;
(7) 8) that, if the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice aggregate principal amount of Notes surrendered by Holders exceeds the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer AmountAvailable Asset Sale Proceeds, the tendered Company or the Trustee shall select the Notes and Pari Passu Indebredness will to be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or with such longer period adjustments as may be required deemed appropriate by lawthe Company so that only Notes in denominations of US$1,000, or integral multiples of US$1,000, shall be purchased);
(9) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered; PROVIDED that each Note purchased and each such new Note issued shall be in an original principal amount in denominations of US$1,000 and integral multiples of US$1,000; and
(10) the calculations used in determining the amount of Available Asset Sale Proceeds to be applied to the purchase of such Notes. 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 a Net in connection with an Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis Section 4.10, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue thereof.
Appears in 1 contract
Sources: Indenture (Norske Skog Canada LTD)
Limitation on Asset Sales. (a) The Company shall Credit Parties will not, and shall will not permit any of its Restricted their respective Subsidiaries to, consummate an make any Asset Sale unless(other than any Non-Exclusive License as set forth in Section 4.16(b)) in a transaction or a series of related transactions of assets, unless the following conditions are met:
(1) the Company or the applicable Restricted Subsidiary, as the case may be, The relevant Credit Party receives consideration at the time of such the Asset Sale at least equal to the fair market value (determined by Holdings, or, in the case of any assets valued in excess of $2,500,000, by the board of directors of Holdings) 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);of.
(2) at 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 consists of cash or Cash Equivalents and (it being understood that any deferred payment, milestone payment, royalty payment or other contingent payment in connection with any sale or licensing of Intellectual Property, in each case, to be paid in cash or Cash Equivalents, shall be received at the time constitute cash consideration for purposes of such disposition; provided that, for this provision). For purposes of this clause (2) any securities), notes instruments or other obligations securities received by from the Company or any such Restricted Subsidiary from such transferee purchaser that are promptly, but in any event within 90 days of the closing, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (Credit Party to cash, to the extent of the cash or Cash Equivalents actually so received) within 30 days after receipt will , shall be considered “cash” or “cash received at closing. After the receipt of any Net Cash Equivalents”; and
(3) upon the consummation of Proceeds from an Asset SaleSale in excess of the Disposition Threshold (an “Asset Sale Repayment Triggering Event”), the Company Issuer (i) shall applyfirst make, or cause such Restricted Subsidiary to applybe made, the Net Cash Proceeds relating an offer to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) On the 366th day after an Asset Sale or such earlier dateprepay amounts outstanding, if any, as and/or reduce unused commitments by a corresponding amount under 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 Delayed Draw Term Loan Agreement (3)(a), (3)(b) and (3)(c) of Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 thereof) in accordance with Section 2.4(d) or any similar provision therein, and (ii) if such offer to prepay and/or reduce commitments is rejected or not accepted, either in whole or in party, by any of the applicable lenders thereunder and/or Net Cash Proceeds from such Asset sale remain unapplied immediately after giving effect to subclause (i) above, then shall make a Repayment Triggering Event Redemption, in each case, equal to the amount of such Net Cash Proceeds received (net of any Pari Passu Indebtedness, amount applied to all holders of such Pari Passu Indebtedness, on make a date prepayment and/or mandatory reduction to unused commitments under the Delayed Draw Term Loan Agreement to the extent required by the terms thereof) in accordance with Section 16.03 (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 such Pari Passu Indebtedness) (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 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 Repayment Amount”).
(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. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales b) Notwithstanding clause (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). In the event of the transfer of substantially all (but not alla) 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 4.10 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 addition4.16, the fair market value of such properties Credit Parties will not, and assets of will not permit their respective Subsidiaries to, enter into any Non-Exclusive License unless the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent thatfollowing conditions are met:
(1) The relevant Credit Party receives consideration at the time of the Non-Exclusive License at least 75equal to fair market value (determined by Holdings, or, in the case of any Non-Exclusive License valued in excess of $2,500,000, by the board of directors of Holdings) of such Non-Exclusive License.
(2) 100% of the consideration for such Asset Sale constitutes Replacement Assets; and
consists of cash or Cash Equivalents (2) such Asset Sale is for fair market value; provided it being understood that any consideration not constituting Replacement Assets received by the Company deferred payment, milestone payment, royalty payment or any of its Restricted Subsidiaries other contingent payment in connection with any Asset Sale permitted sale or licensing of Intellectual Property, in each case, to be consummated under this Section 4.10(c) paid in cash or Cash Equivalents, shall constitute cash consideration for purposes of this provision). Any Net Cash Proceeds subject to received from one or more Non-Exclusive Licenses in excess of the provisions of Sections 4.10(a) and Disposition Threshold shall constitute “Excess Proceeds.” If, at any time, the accumulated Excess Proceeds equals or exceeds $5,000,000 (ba “NEL Repayment Triggering Event”). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that , the Issuer (i) shall first make, or cause to be made, an offer to prepay amounts outstanding, if any, and/or reduce unused commitments by a corresponding amount under the Supplemental Indenture is executed Delayed Draw Term Loan Agreement (to the extent required by the terms thereof) in accordance with Section 2.4(d), or any similar provision therein, and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following if such Inversion Transactionoffer to prepay and/or reduce commitments is rejected or not accepted, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes either in whole or in part party, by any of the applicable lenders thereunder and/or Net Cash Proceeds from such Non-Exclusive License remain unapplied immediately after giving effect to subclause (i) above, then shall make a Repayment Triggering Event Redemption, in integral multiples of $1000 each case, in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The Company shall comply accordance with the requirements of Rule 14e-1 under applicable NEL Ratio (as defined below) (the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this“NEL Repayment Amount”).
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:
(1) the Company or the applicable such Restricted 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 sold or otherwise disposed of (as determined in good faith by the Company’s Board of DirectorsDirectors of the Company, and evidenced by a board resolution, which determination shall be conclusive);
(2) at least not less than 75% of the consideration (excluding, in the case of an Asset Sale (or series of related Asset Sales) of assets, by way of relief from, or by another Person assuming responsibilities for, any liabilities, contingent or otherwise, that are not Indebtedness) received by the Company or the such applicable Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents and Equivalents; provided that this clause (2) shall be received at not apply to any Asset Sale (or series of related Asset Sales), involving assets that accounted for less than one percent of Consolidated EBITDA during the time period of the most recent four consecutive fiscal quarters ending prior to the date of such dispositionAsset Sale for which consolidated financial statements of the Company are available; provided thatprovided, further, that only for purposes of this clause (2) the following shall be deemed to constitute cash:
(a) the outstanding principal amount of Indebtedness of the Company or any securitiesRestricted Subsidiary (other than (x) Capital Stock which constitutes Indebtedness and (y) Indebtedness to the Company or any Restricted Subsidiary) assumed by the transferee (which shall not constitute the Company or a Restricted Subsidiary) pursuant to the respective Asset Sale, so long as the Company or such Restricted Subsidiary is irrevocably and unconditionally released from all liability under such Indebtedness; and
(b) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are are, within 180 days after the date of the respective Asset Sale, converted by the Company into cash (to the extent of the cash received in that conversion); and
(3) the Asset Sale Proceeds received by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof eitherare applied:
(a) to permanently reduce Indebtedness under the Credit Agreement andextent the Company or any such Restricted Subsidiary, in as the case may be, elects, or is required, to prepay, repay or purchase indebtedness under any then existing Senior Indebtedness of the Company or any such Indebtedness under Restricted Subsidiary within 365 days following the receipt of the Asset Sale Proceeds from any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facilityAsset Sale;
(b) to make the extent the Company elects, to 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 StockStock or other securities purchased in connection with the acquisition of Capital Stock or property of another Person) that will be used or useful in businesses similar, reasonably related, ancillary or complementary to the business of the Company and its (including extensions or developments thereof) or any such Restricted Subsidiaries Subsidiary as existing conducted on the Issue Date Date; provided that such investment occurs (or in businesses reasonably related thereto (“Replacement Assets”); ora definitive agreement committing so to invest is entered) within 365 days following receipt of such Asset Sale Proceeds;
(c) a combination to the extent of prepayment and investment permitted by the foregoing balance of Available Asset Sale Proceeds after the application in accordance with clause (a) or (b), if on such 365th day in the case of clauses (3)(a) and (3)(b).
(b) On , the 366th day after an Available Asset Sale or such earlier dateProceeds exceed $10.0 million, if any, as the Board of Directors of the Company or of such Restricted Subsidiary determines not shall apply an amount equal to apply the Net Cash Proceeds relating to such Available Asset Sale as set forth in clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this paragraph (each, a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (repurchase the “Net Proceeds Offer”) to all Holders andNotes, 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 such Pari Passu Indebtedness) (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 purchase price in cash equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchased, thereof plus accrued and unpaid interest thereoninterest, if any, to the purchase date (an "Excess Proceeds Offer"). Notwithstanding the foregoing, in the event that a Restricted Subsidiary that is not a Wholly Owned Restricted Subsidiary dividends or distributes to all of purchase; provided, however, that if at its stockholders on a pro rata basis any time any non-cash consideration received by proceeds of an Asset Sale to the Company or any another Restricted Subsidiary, the Company or such Restricted Subsidiary need only apply its share 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 proceeds in accordance with this Section 4.10the preceding clauses (a), (b) and (c). The If an Excess Proceeds Offer is not fully subscribed, the Company may defer retain the Net portion of the Available Asset Sale Proceeds Offer until there not required to repurchase Notes. If the Company is required to make an aggregate unutilized Net Excess Proceeds Offer Amount Offer, the Company shall mail, within 30 days following the date specified in clause (3)(c) above, a notice to the Holders stating, among other things:
(1) that such Holders have the right to require the Company to apply the Available Asset Sale Proceeds to repurchase such Notes at a purchase price in cash equal to or in excess 100% of $10.0 million resulting from one or more Asset Sales the principal amount thereof plus accrued and unpaid interest, if any, to the purchase date;
(at 2) the purchase date, which time, the entire unutilized Net Proceeds Offer Amount, shall be no earlier than 30 days and not just later than 45 days from the date such notice is mailed;
(3) the instructions that each Holder must follow in order to have such Notes purchased; and
(4) the calculations used in determining the amount in excess of $10.0 million, shall Available Asset Sale Proceeds to be applied as required pursuant to this Section 4.10(b))the purchase of such Notes. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries Subsidiaries, taken as an entirety a whole, to a Person in a transaction permitted under Section 5.01, which transaction does not constitute a Change of Control5.01 below, the successor corporation Person shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 4.09, and shall comply with the provisions of this Section 4.10 4.09 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The Company shall 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 an Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthe "Asset Sale" provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.09 by virtue thereof.
Appears in 1 contract
Limitation on Asset Sales. (a) The Prior to the occurrence of the Fall-Away Event, the Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an any Asset Sale unless:
unless (1i) the Company or the applicable Restricted Subsidiary, as the case may be, such Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets sold included in such Asset Sale, (ii) immediately before and immediately after giving effect to such Asset Sale, no Default or otherwise disposed Event of Default shall have occurred and be continuing and (as determined in good faith by the Company’s Board of Directors);
(2iii) at least 75% of the consideration received by the Company or such Subsidiary therefor is in the Restricted form of cash paid at the closing thereof, provided, however, that this clause (iii) shall not apply if, after giving effect to such Asset Sale, the aggregate principal amount of all notes or similar debt obligations and Fair Market Value of all equity securities received by the Company from all Asset Sales since September 25, 2000 (other than such notes or similar debt obligations and such equity securities converted into or otherwise disposed of for cash and applied in accordance with the second succeeding sentence) would not exceed 2.5% of Consolidated Tangible Assets at such time. The amount (without duplication) of any (x) Indebtedness (other than Subordinated Indebtedness) of the Company or such Subsidiary that is expressly assumed by the transferee in such Asset Sale and with respect to which the Company or such Subsidiary, as the case may be, from such Asset Sale shall be in is unconditionally released by the form of cash or Cash Equivalents and shall be received at the time holder of such disposition; provided that, for purposes of this clause Indebtedness and (2y) any securitiesnotes, notes securities or other similar obligations or items of property received by the Company or any such Restricted Subsidiary from such transferee that are converted immediately converted, sold or exchanged by the Company or such Restricted Subsidiary into for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents actually so received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso shall be deemed to be cash for purposes of this 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 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 such Pari Passu Indebtedness) (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 Section 4.12. If at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Companysuch 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 the date of such conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.104.12. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). In the event of the A transfer of substantially all (but not all) of the property and assets of by the Company and its Restricted Subsidiaries as an entirety to a Person in Wholly Owned Subsidiary or by a transaction permitted under Section 5.01, which transaction does not constitute a Change of Control, the successor corporation shall be deemed Wholly Owned Subsidiary to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it 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 another Wholly Owned Subsidiary will not be deemed to be Net Cash Proceeds for purposes an Asset Sale, and a transfer of this assets that constitutes a Restricted Payment and that is permitted under Section 4.104.10 hereof will not be deemed to be an Asset Sale.
(cb) Notwithstanding Sections 4.10(a) and (b)Prior to the occurrence of the Fall-Away Event, if the Company or any Subsidiary engages in an Asset Sale, the Company or such Subsidiary shall, no later than 360 days after such Asset Sale, (i) apply all or any of the Net Proceeds therefrom to repay Indebtedness that ranks pari passu with the Notes and its Restricted Subsidiaries will be permitted to consummate an is secured by the assets disposed of in the Asset Sale without complying or to repay Bank Debt in accordance with such Sections to the extent that:
applicable provisions thereof, (1ii) at least 75% invest all or any part of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by Net Proceeds therefrom in the lines of business of the Company or any of its Restricted Subsidiaries in connection with immediately prior to such investment or (iii) any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions combination of Sections 4.10(aclauses (i) and (b)ii) above. The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation amount of such Inversion Transaction; Net Proceeds not applied or invested as provided in this paragraph (iib) immediately following such Inversion Transactionwill constitute “Excess Proceeds.”
(c) Prior to the occurrence of the Fall-Away Event, when the aggregate amount of Excess Proceeds equals or exceeds $5,000,000, the Company shall apply be required to S&P and ▇▇▇▇▇’▇ make an offer to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; purchase (iiian “Asset Sale Offer”) immediately following such Inversion Transactionfrom all Holders, the Company’s Consolidated Fixed Charge Coverage Ratio is at least an aggregate principal amount of Notes equal to the Consolidated Fixed Charge Coverage Ratio immediately prior amount of such Excess Proceeds as follows:
(i) The Company shall make an Asset Sale Offer to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) all Holders in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply accordance with the procedures set forth in this Indenture. Section 4.12 to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased out of the amount (the “Asset Sale Payment Amount”) of such Excess Proceeds.
(ii) The notice offer price for the Notes shall be payable in cash in an amount equal to 100% of the principal amount of the Notes tendered pursuant to such Asset Sale Offer, plus accrued and unpaid interest and Additional Interest, if any, to the Holders shall contain all instructions and materials necessary to enable date such Holders to tender Asset Sale Offer is consummated (the “Asset Sale Purchase Price”), in accordance with the procedures set forth in this Section 4.12. To the extent that the aggregate Asset Sale Purchase Price of Notes tendered pursuant to an Asset Sale Offer is less than the Asset Sale Payment Amount relating thereto (such shortfall constituting a “Net Proceeds Deficiency”), the Company may use such Net Proceeds Deficiency, or a portion thereof, for general corporate purposes.
(iii) If the aggregate Asset Sale Purchase Price of Notes validly tendered and not withdrawn by holders thereof exceeds the Asset Sale Payment Amount, Notes to be purchased shall be selected on a pro rata basis.
(iv) Upon completion of such Asset Sale Offer in accordance with the foregoing provisions, the amount of Excess Proceeds with respect to which such Asset Sale Offer was made shall be deemed to be zero. In the event that any other Indebtedness of the Company which ranks pari passu with the Notes (“Other Debt”) requires an offer to purchase to be made to repurchase such Other Debt upon the consummation of an Asset Sale, the Company may apply the Excess Proceeds to both purchase such Other Debt and to make an Asset Sale Offer, provided, that the purchase price of such Other Debt does not exceed 100% of the aggregate principal amount or accreted value thereof plus interest thereon. Such With respect to any Excess Proceeds, the Company shall make the Asset Sale Offer in respect thereof at the same time as the analogous offer to purchase is made pursuant to any Other Debt and the purchase date in respect thereof shall be the same as the purchase date in respect thereof pursuant to any Other Debt. With respect to any Asset Sale Offer effected pursuant to this Section 4.12, to the extent the aggregate principal amount of Notes and Other Debt, if any, tendered pursuant to such Asset Sale Offer and the concurrent offer to purchase with respect to such Other Debt exceeds the Excess Proceeds, such Notes and Other Debt, if any, shall be purchased pro rata based on the aggregate principal amount of such Notes and such Other Debt tendered by each holder thereof.
(d) If the Company is required to make an Asset Sale Offer, the Company shall, within 30 days following the date specified in clause (c) above, notify the Trustee thereof and give written notice shall stateof such Asset Sale Offer to each Holder by first-class mail, postage prepaid, at the address of such Holder appearing in the register maintained by the Registrar, stating:
(1) that the Net Proceeds an Asset Sale Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment4.12;
(2) that such Holders have the right to require the Company to apply the Excess Proceeds to repurchase the Notes at a purchase price (including in cash equal to 100% of the principal amount of thereof plus accrued and unpaid interest) and , if any, to the purchase date (which shall be no earlier than 30 days and not later than 60 days from the Net date such notice is mailed (the “Excess Proceeds Offer Payment Date”);
(3) that any Note not tendered or accepted for payment will continue to accrue interest if interest is then accruinginterest;
(4) that, unless the Company defaults in making payment therefor, that any Note Notes accepted for payment pursuant to the Net Proceeds Asset Sale Offer shall cease to accrue interest after the Net Excess Proceeds Offer Payment Date;
(5) that Holders electing accepting the offer to have a Note their Notes purchased pursuant to a Net Proceeds the Asset Sale Offer will be required to surrender the NoteNotes, 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 Business Day preceding the Net Excess Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election acceptance of the Asset Sale Offer if the Paying Agent receives, not later than 5:00 p.m., New York City time, the close of business on the second third Business Day preceding the Net Excess Proceeds Offer Payment Date, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his or her election to have such Note Notes purchased; and;
(7) that if the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice aggregate principal amount of Notes surrendered by Holders exceeds the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples amount of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer AmountExcess Proceeds, the tendered Company shall select the Notes and Pari Passu Indebredness will to be purchased on a pro rata basis (based on amounts tendered) in an so that the aggregate amount equal to of Notes so purchased equals the Net amount of Excess Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or with such longer period adjustments as may be required deemed appropriate by law. The the Company so that only Notes in denominations of $1,000 or integral multiples thereof shall comply with be purchased);
(8) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the requirements unpurchased portion of Rule 14e-1 under the Exchange Act Notes surrendered; provided that each Note purchased and each such new Note issued shall be in an original principal amount of $1,000 or an integral multiple thereof;
(9) the calculations used in determining the amount of Excess Proceeds to be applied to the purchase of such Notes;
(10) any other securities laws procedures that a Holder must follow to accept an Asset Sale Offer or effect withdrawal of such acceptance; and
(11) the name and regulations thereunder address of the Paying Agent. On the Excess Proceeds Payment Date, the Company shall, to the extent such laws and regulations are applicable in connection lawful, (1) accept for payment, on a pro rata basis to the extent necessary, Notes or portions thereof tendered pursuant to the Asset Sale Offer, (2) deposit with the repurchase of Paying Agent US legal tender sufficient to pay the purchase price plus accrued and unpaid interest, if any, on the Notes pursuant to a Net Proceeds Offer. To be purchased or portions thereof, (3) deliver or cause to be delivered to the extent Trustee Notes so accepted together with an Officers’ Certificate stating that the provisions of any securities laws such Notes or regulations conflict with thisportions thereof were
Appears in 1 contract
Sources: Indenture (Healthsouth Corp)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company or the such applicable Restricted 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 Fair Market Value of the assets sold or otherwise disposed of of; (as determined in good faith by the Company’s Board of Directors);
(2ii) at least 75not less than 80% of the consideration received by the Company or the such applicable Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of (A) cash or Cash Equivalents or (B) Replacement Assets, and shall be in each case set forth in subclauses (A) and (B) of this clause (a)(ii), is received at the time of such sale or other disposition; provided that, for purposes PROVIDED that the amount of this clause (1) any Debt (other than subordinated Debt) of the Company or any such applicable Restricted Subsidiary that is actually assumed by the transferee in such Asset Sale and from which the Company and its Restricted Subsidiaries are fully and unconditionally released and (2) any securities, notes or other obligations securities received by the Company or any such applicable Restricted Subsidiary from such transferee that which are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within ten Business Days of such Asset Sale (to the extent of the cash or Cash Equivalents received) within 30 days after receipt ), will be considered “cash” or “Cash Equivalents”deemed to be cash for purposes of this clause (a)(ii); and
and (3iii) upon the consummation of an Asset Sale, Sale Proceeds received by the Company shall applyor such Restricted Subsidiary, as the case may be, are applied, at the option of the Company or cause such Restricted Subsidiary, (A) to prepay, repay or purchase indebtedness under the New Credit Facilities or any other secured Debt of the Company or such Restricted Subsidiary to apply, or the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
Pacifica Notes; or (aB) to permanently reduce Indebtedness under the Credit Agreement 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;
(b) to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale are used or in properties and assets (including Capital Stock) that will be used are useful in the business of the Company and or its Restricted Subsidiaries or in businesses reasonably similar to or ancillary to the business of the Company or its Restricted Subsidiaries as existing conducted at the time of such Asset Sale; PROVIDED that (1) such investment occurs or (2) the Company or any such Restricted Subsidiary enters into contractual commitments to so apply such Asset Sale Proceeds, subject only to customary conditions (other than the obtaining of financing), in each case, within 365 days following the receipt of such Asset Sale Proceeds; or (C) if on such 365th day the Available Asset Sale Proceeds exceed $15,000,000, the Company shall apply an amount equal to the Available Asset Sale Proceeds to an offer to repurchase the Notes (and, at its option, to an offer to repurchase other equal and ratable Debt), 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"). If an Excess Proceeds Offer is not fully subscribed, the Company may retain and use for general corporate purposes the portion (any such portion, a "DEFICIENCY") of the Available Asset Sale Proceeds not required to repurchase Notes. Upon completion of any Excess Proceeds Offer, the amount of Available Asset Sale Proceeds shall be reset to zero; PROVIDED that the amount of the 25% Available Asset Sale Proceeds (as defined below) shall constitute Available Asset Sale Proceeds for purposes of the first Excess Proceeds Offer that is made after the fifth anniversary of the Issue Date or in businesses reasonably related thereto (“Replacement Assets”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b"FIFTH ANNIVERSARY").
(b) On Even if the 366th day after Company completes an Asset Sale, in no event shall the Company use or be required to use Available Asset Sale Proceeds to purchase more than 25% of the original aggregate principal amount of the Notes on or prior to the Fifth Anniversary. If the aggregate Available Asset Sale Proceeds (disregarding any resetting to zero as described in paragraph (a) above) resulting from Asset Sales occurring on or prior to the Fifth Anniversary, less any Deficiencies resulting from any Excess Proceeds Offers made by the Company on or prior to such earlier date, if anyexceed 25% of the original aggregate principal amount of the Notes (such excess being the "25% AVAILABLE ASSET SALE PROCEEDS"), then the Company shall make an Excess Proceeds Offer in accordance with the foregoing provisions (i) promptly after the Fifth Anniversary, in the event the amount of the 25% Available Asset Sale Proceeds exceeds $15,000,000 or (ii) at such time as the Board of Directors amount of the 25% Available Asset Sale Proceeds together with Available Asset Sale Proceeds realized after the Fifth -49- Anniversary exceeds $15,000,000, in the event the amount of the 25% Available Asset Sale Proceeds is less than $15,000,000.
(c) If the Company or is required to make an Excess Proceeds Offer, the Company shall (i) notify the Trustee thereof at least five Business Days prior to the commencement of the Excess Proceeds Offer and (ii) send by first-class mail, postage prepaid, within 30 days following the date specified in clause (a)(iii)(C) of this Section 4.10, a notice to the Trustee and to each Holder, at the address appearing in the register maintained by the Registrar, stating the information set forth below. The Excess Proceeds Offer shall remain open for a period of 20 Business Days following its commencement (the "OFFER PERIOD"). The notice, which shall govern the terms of the Excess Proceeds Offer, shall state:
(1) that such Restricted Subsidiary determines not Holders have the right to require the Company to apply the Net Cash Proceeds relating to such Available Asset Sale as set forth in clauses (3)(a)Proceeds, (3)(bsubject to the limitations under Section 4.10(b) and (3)(c) of Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 andhereof, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of repurchase 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 such Pari Passu Indebtedness) (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 purchase price in cash equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchasedNotes, plus accrued and unpaid interest thereoninterest, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this 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 $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; andpurchase date;
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Excess Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered length of time the Excess Proceeds Offer will be accepted for paymentremain open;
(23) the purchase price (including the amount of accrued interest) and the purchase date (which shall be a Business Day no earlier than 30 days nor later than 60 days from the Net Proceeds Offer Payment Datedate such notice is mailed);
(34) that any Note not tendered or accepted for payment will continue to accrue interest if interest is then accruinginterest;
(45) that, unless the Company defaults in making a payment thereforpursuant to the Excess Proceeds Offer, any Note Notes accepted for payment pursuant to the Net Excess Proceeds Offer shall cease to accrue interest after the Net Proceeds expiration of the Offer Payment DatePeriod;
(56) that Holders electing to have a Note purchased pursuant to a Net any 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 Business Day preceding the Net Proceeds Offer Payment Datepurchase date;
(67) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding expiration of the Net Proceeds Offer DatePeriod, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and;
(7) 8) that, if the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice aggregate principal amount of Notes surrendered by Holders exceeds the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer AmountAvailable Asset Sale Proceeds, the tendered Company or the Trustee shall select the Notes and Pari Passu Indebredness will to be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or with such longer period adjustments as may be required deemed appropriate by lawthe -50- Company so that only Notes in denominations of US$1,000, or integral multiples thereof, shall be purchased);
(9) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered; PROVIDED that each Note purchased and each such new Note issued shall be in an original principal amount in denominations of US$1,000 and integral multiples thereof; and
(10) the calculations used in determining the amount of Available Asset Sale Proceeds to be applied to the purchase of such Notes. 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 a Net an Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis Section 4.10, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue thereof.
Appears in 1 contract
Sources: Indenture (Norske Skog Canada LTD)
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an make any Asset Sale unless:
unless (1i) 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 by the good faith judgment of the Board of Directors evidenced by a Board Resolution and (ii) at least 75.0% of the consideration received for such Asset Sale consists of cash or cash equivalents or the assumption of unsubordinated Indebtedness. The Company shall, or shall cause the relevant Restricted Subsidiary to, within 360 days after the date of receipt of the Net Cash Proceeds from an Asset Sale, (i) (A) apply an amount equal to such Net Cash Proceeds to permanently repay unsubordinated Indebtedness of the Company or Indebtedness of any Restricted Subsidiary, in each case, owing to a Person other than the Company or any of its Restricted Subsidiaries or (B) invest an equal amount, or the amount not so applied pursuant to clause (A), in property or assets of a nature or type or that are used in a business (or in a Person having property and assets of a nature or type, or engaged in a business) similar or related to the nature or type of the property and assets of, or the business of, the Company and its Restricted Subsidiaries existing on the date of such investment (as determined in good faith by the Company’s Board of Directors);
, whose determination shall be conclusive and evidenced by a Board Resolution) and (2ii) at least 75% apply (no later than the end of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from 360-day period referred to above) such Asset Sale shall be in the form of cash or excess Net Cash Equivalents and shall be received at the time of such disposition; provided that, for purposes of this clause (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents Proceeds (to the extent not applied pursuant to clause (i)) as provided in the following paragraphs of this Section 1017. The amount of such Net Cash Proceeds required to be applied (or to be committed to be applied) during such 360-day period referred to above in the preceding sentence and not applied as so required by the end of such period shall constitute "Excess Proceeds". If, as of the cash or Cash Equivalents receivedfirst day of any calendar month, the aggregate amount of Excess Proceeds not theretofore subject to an Excess Proceeds Offer (as defined below) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Saletotals at least $10.0 million, the Company shall applymust, or cause such Restricted Subsidiary to applynot later than the 30th Business Day thereafter, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this paragraph (each, a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer (an "Excess Proceeds Offer") to purchase (from the “Net Proceeds Offer”) to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum basis an aggregate principal amount of Notes and Pari Passu Indebtedness that may be purchased with equal to the Net Excess Proceeds Offer Amount on such date, at a purchase price equal to 100100.0% of the principal amount of the Notes and Pari Passu Indebtedness to be purchasedNotes, plus plus, in each case, accrued and unpaid interest thereonand Liquidated Damages, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration received by purchase (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"Excess Proceeds Payment"), 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. The Company may defer the Net shall commence an Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 by mailing 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections notice to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) Trustee and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that each Holder stating: (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Excess Proceeds Offer is being made pursuant to this Section 4.10 1017 and that (subject to the provisions hereof) all Notes validly tendered will be accepted for payment;
payment on a pro rata basis; (2ii) the purchase price (including the amount of accrued interest) and the date of purchase date (which shall be a Business Day no earlier than 30 days nor later than 60 days from the Net date such notice is mailed) (the "Excess Proceeds Offer Payment Date");
; (3iii) that any Note not tendered will continue to accrue interest if interest is then accruing;
pursuant to its terms; (4iv) that, unless the Company defaults in making the payment thereforof the Excess Proceeds Payment, any Note accepted for payment pursuant to the Net Excess Proceeds Offer shall cease to accrue interest and Liquidated Damages, if any, on and after the Net Excess Proceeds Offer Payment Date;
; (5v) that Holders electing to have a Note purchased pursuant to a Net the Excess Proceeds Offer will be required to surrender the Note, together with the form entitled “"Option of the Holder to Elect Purchase” " on the reverse side 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 Business Day immediately preceding the Net Excess Proceeds Offer Payment Date;
; (6vi) that Holders will shall be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, the close of business on the second third Business Day immediately preceding the Net Excess Proceeds Offer Payment Date, a telegram, facsimile transmission or letter setting forth the name of the such Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note Notes purchased; and
and (7vii) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice unpurchased portion of the Net Proceeds Offer, Holders may elect to tender their Notes surrendered; provided that each Note purchased and each new Note issued shall be in whole a principal amount of $1,000 or in part in integral multiples of $1000 in exchange for cashthereof. To On the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Excess Proceeds Offer AmountPayment Date, the tendered Notes and Pari Passu Indebredness will be purchased Company shall (i) accept for payment on a pro rata basis Notes or portions thereof tendered pursuant to the Excess Proceeds Offer; (based on amounts tenderedii) deposit with the Paying Agent money sufficient to pay the purchase price of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee all Notes or portions thereof so accepted together with an Officer's Certificate specifying the Notes or portions thereof accepted for payment by the Company. The Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an aggregate amount equal to the Net purchase price, and the Trustee shall promptly authenticate and mail to such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered; provided that each Note purchased and each new Note issued shall be in a principal amount of $1,000 or integral multiples thereof. To the extent that the aggregate principal amount of Notes tendered is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds for general corporate purposes. The Company shall publicly announce the results of the Excess Proceeds Offer Amount (if any)as soon as practicable after the Excess Proceeds Payment Date. A Net Proceeds Offer For purposes of this Section 1017, the Trustee shall remain open for a period of 20 business days or such longer period act as may be required by lawthe Paying Agent. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws rules and regulations thereunder to the extent such laws rules and regulations are applicable applicable, in connection with the event that such Excess Proceeds are received by the Company under this Section 1017 and the Company is required to repurchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisas described above.
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:
unless (1i) the Company or the applicable Restricted Subsidiary, as the case may be, such Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets sold included in such Asset Sale, (ii) immediately before and immediately after giving effect to such Asset Sale, no Default or otherwise disposed Event of Default shall have occurred and be continuing and (as determined in good faith by the Company’s Board of Directors);
(2iii) at least 75% of the consideration received by the Company or such Subsidiary therefor is in the Restricted form of cash paid at the closing thereof, provided, however, that this clause (iii) shall not apply if, after giving effect to such Asset Sale, the aggregate principal amount of all notes or similar debt obligations and Fair Market Value of all equity securities received by the Company from all Asset Sales since the Issue Date (other than such notes or similar debt obligations and such equity securities converted into or otherwise disposed of for cash and applied in accordance with the second succeeding sentence) would not exceed 2.5% of Consolidated Tangible Assets. The amount (without duplication) of any (x) Indebtedness (other than Subordinated Indebtedness) of the Company or such Subsidiary that is expressly assumed by the transferee in such Asset Sale and with respect to which the Company or such Subsidiary, as the case may be, from such Asset Sale shall be in is unconditionally released by the form of cash or Cash Equivalents and shall be received at the time holder of such disposition; provided that, for purposes of this clause Indebtedness and (2y) any securitiesnotes, notes securities or other similar obligations or items of property received by the Company or any such Restricted Subsidiary from such transferee that are converted immediately converted, sold or exchanged by the Company or such Restricted Subsidiary into for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents actually so received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso shall be deemed to be cash for purposes of this 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 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 such Pari Passu Indebtedness) (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 Section 4.12. If at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Companysuch 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 the date of such conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.104.12. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). In the event of the A transfer of substantially all (but not all) of the property and assets of by the Company and its Restricted Subsidiaries as an entirety to a Person in Wholly Owned Subsidiary or by a transaction permitted under Section 5.01, which transaction does not constitute a Change of Control, the successor corporation shall be deemed Wholly Owned Subsidiary to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it 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 another Wholly Owned Subsidiary will not be deemed to be Net Cash Proceeds for purposes an Asset Sale, and a transfer of this assets that constitutes a Restricted Payment and that is permitted under Section 4.104.10 hereof will not be deemed to be an Asset Sale.
(cb) Notwithstanding Sections 4.10(a) and (b)If the Company or any Subsidiary engages in an Asset Sale, the Company and its Restricted Subsidiaries will be permitted to consummate an or such Subsidiary shall, no later than 360 days after such Asset Sale without complying with such Sections to the extent that:
Sale, (1i) at least 75% apply all or any of the consideration for such Asset Sale constitutes Replacement Assets; and
Net Proceeds therefrom to repay Senior Indebtedness in accordance with the applicable provisions thereof, (2ii) such Asset Sale is for fair market value; provided that invest all or any consideration not constituting Replacement Assets received by part of the Net Proceeds therefrom in the lines of business of the Company or any of its Restricted Subsidiaries in connection with immediately prior to such investment or (iii) any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions combination of Sections 4.10(aclauses (i) and (b)ii) above. The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation amount of such Inversion Transaction; Net Proceeds not applied or invested as provided in this paragraph (iib) immediately following such Inversion Transactionwill constitute "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds equals or exceeds $5,000,000, the Company shall apply be required to S&P and ▇▇▇▇▇’▇ make an offer to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; purchase (iiian "Asset Sale Offer") immediately following such Inversion Transactionfrom all Holders, the Company’s Consolidated Fixed Charge Coverage Ratio is at least an aggregate principal amount of Notes equal to the Consolidated Fixed Charge Coverage Ratio immediately prior amount of such Excess Proceeds as follows:
(i) The Company shall make an Asset Sale Offer to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) all Holders in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply accordance with the procedures set forth in this Indenture. Section 4.12 to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased out of the amount (the "Asset Sale Payment Amount") of such Excess Proceeds.
(ii) The notice offer price for the Notes shall be payable in cash in an amount equal to 100% of the principal amount of the Notes tendered pursuant to such Asset Sale Offer, plus accrued and unpaid interest and Additional Interest, if any, to the Holders shall contain all instructions and materials necessary to enable date such Holders to tender Asset Sale Offer is consummated (the "Asset Sale Purchase Price"), in accordance with the procedures set forth in this Section 4.12. To the extent that the aggregate Asset Sale Purchase Price of Notes tendered pursuant to an Asset Sale Offer is less than the Asset Sale Payment Amount relating thereto (such shortfall constituting a "Net Proceeds Deficiency"), the Company may use such Net Proceeds Deficiency, or a portion thereof, for general corporate purposes.
(iii) If the aggregate Asset Sale Purchase Price of Notes validly tendered and not withdrawn by holders thereof exceeds the Asset Sale Payment Amount, Notes to be purchased shall be selected on a pro rata basis.
(iv) Upon completion of such Asset Sale Offer in accordance with the foregoing provisions, the amount of Excess Proceeds with respect to which such Asset Sale Offer was made shall be deemed to be zero. In the event that any other Indebtedness of the Company which ranks pari passu with the Notes ("Other Debt") requires an offer to purchase to be made to repurchase such Other Debt upon the consummation of an Asset Sale, the Company may apply the Excess Proceeds to both purchase such Other Debt and to make an Asset Sale Offer, provided, that the purchase price of such Other Debt does not exceed 100% of the aggregate principal amount or accreted value thereof plus interest thereon. Such With respect to any Excess Proceeds, the Company shall make the Asset Sale Offer in respect thereof at the same time as the analogous offer to purchase is made pursuant to any Other Debt and the purchase date in respect thereof shall be the same as the purchase date in respect thereof pursuant to any Other Debt. With respect to any Asset Sale Offer effected pursuant to this Section 4.12, to the extent the aggregate principal amount of Notes and Other Debt, if any, tendered pursuant to such Asset Sale Offer and the concurrent offer to purchase with respect to such Other Debt exceeds the Excess Proceeds, such Notes and Other Debt, if any, shall be purchased pro rata based on the aggregate principal amount of such Notes and such Other Debt tendered by each holder thereof.
(d) If the Company is required to make an Asset Sale Offer, the Company shall, within 30 days following the date specified in clause (c) above, notify the Trustee thereof and give written notice shall stateof such Asset Sale Offer to each Holder by first-class mail, postage prepaid, at the address of such Holder appearing in the register maintained by the Registrar, stating:
(1) that the Net Proceeds an Asset Sale Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment4.12;
(2) that such Holders have the right to require the Company to apply the Excess Proceeds to repurchase the Notes at a purchase price (including in cash equal to 100% of the principal amount of thereof plus accrued and unpaid interest) and , if any, to the purchase date (which shall be no earlier than 30 days and not later than 60 days from the Net date such notice is mailed (the "Excess Proceeds Offer Payment Date");
(3) that any Note not tendered or accepted for payment will continue to accrue interest if interest is then accruinginterest;
(4) that, unless the Company defaults in making payment therefor, that any Note Notes accepted for payment pursuant to the Net Proceeds Asset Sale Offer shall cease to accrue interest after the Net Excess Proceeds Offer Payment Date;
(5) that Holders electing accepting the offer to have a Note their Notes purchased pursuant to a Net Proceeds the Asset Sale Offer will be required to surrender the NoteNotes, 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 Business Day preceding the Net Excess Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election acceptance of the Asset Sale Offer if the Paying Agent receives, not later than 5:00 p.m., New York City time, the close of business on the second third Business Day preceding the Net Excess Proceeds Offer Payment Date, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his or her election to have such Note Notes purchased; and;
(7) that if the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice aggregate principal amount of Notes surrendered by Holders exceeds the Net Proceeds Offeramount of Excess Proceeds, Holders may elect Company shall select the Notes to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an so that the aggregate amount equal to of Notes so purchased equals the Net amount of Excess Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or with such longer period adjustments as may be required deemed appropriate by law. The the Company so that only Notes in denominations of $1,000 or integral multiples thereof shall comply with be purchased);
(8) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the requirements unpurchased portion of Rule 14e-1 under the Exchange Act Notes surrendered; provided that each Note purchased and each such new Note issued shall be in an original principal amount in denominations of $1,000 or integral multiples thereof;
(9) the calculations used in determining the amount of Excess Proceeds to be applied to the purchase of such Notes;
(10) any other securities laws procedures that a Holder must follow to accept an Asset Sale Offer or effect withdrawal of such acceptance; and
(11) the name and regulations thereunder to address of 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 thisPaying Agent.
Appears in 1 contract
Sources: Indenture (Healthsouth Corp)
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of 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 's Board of Directors);
, (2ii) at least 7580% 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 (x) cash or Cash Equivalents Equivalents, (y) Replacement Assets or (z) any combination of the foregoing and shall be is received at the time of such disposition; provided that, for purposes of this clause and (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 270 days of receipt thereof either:
either (aA) to permanently reduce prepay any Indebtedness under incurred pursuant to clause (ii) or clause (xii) of the Credit Agreement and, in the case definition of any such Indebtedness under any revolving credit facility, "Permitted Indebtedness" (other than subordinated Indebtedness) and effect a permanent reduction in the availability under such revolving credit facility;
thereunder, (bB) to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale Replacement Assets 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”); or
(cC) a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) . On the 366th 271st 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 determines, as the case may be, not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) the next preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, 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 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 such Securities and Pari Passu Indebtedness) Indebtedness (and holders to the extent required by the terms of any such Pari Passu Indebtedness) on a pro rata basis, basis based on the maximum aggregate amount outstanding of Notes Securities and Pari Passu Indebtedness requiring such an offer to be made, that may be purchased with amount of Securities and Pari Passu Indebtedness in the aggregate equal to the Net Proceeds Offer Amount at a price equal to, with respect to the Securities, 100% of the principal amount of the Notes and Pari Passu Indebtedness Securities to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase, and with respect to any Pari Passu Indebtedness, an amount not greater than 100% of the principal amount, or accreted value, of such Pari Passu Indebtedness; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the CompanySubsidiary, 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 4.10covenant. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million 5,000,000 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 $10.0 million5,000,000, shall be applied as required pursuant to this Section 4.10(b)paragraph). In Pending the event final application of such Net Cash Proceeds, the transfer Company may temporarily cause the Guarantors to reduce Indebtedness under the Revolving Credit Facility or invest such Net Cash Proceeds in Cash Equivalents. For purposes of substantially all clause (but not allii)(x) 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 Controlimmediately preceding paragraph, the successor corporation term "cash" shall be deemed to have sold include the properties and amount of any Indebtedness for borrowed money or any Capitalized Lease Obligations (A) that is assumed by the transferee of any assets of or property which constitutes 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 Asset Sale or (B) with respect to such deemed the sale as if it were an Asset Sale. In additionor disposition of all of the Capital Stock of a Restricted Subsidiary, that remains the fair market value liability of such properties and assets of the Company Restricted Subsidiary subsequent to such sale or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b)other disposition, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; in each case provided that any consideration not constituting Replacement Assets received by there is no further recourse to the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior respect to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this.
Appears in 1 contract
Sources: Indenture (Manischewitz B Co LLC)
Limitation on Asset Sales. (a) The Neither the Company shall not, and shall not permit nor any of its Restricted Subsidiaries to, will consummate an Asset Sale unless:
unless (1i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of 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 management of the Company or, if such Asset Sale involves consideration in excess of $2,500,000, by the Board of Directors of the Company’s Board of Directors, as evidenced by a board resolution);
, (2ii) at least 75% of the consideration received by the Company or the Restricted such Subsidiary, as the case may be, from such Asset Sale shall be is in cash or Cash Equivalents (other than in the form case where the Company is exchanging all or substantially all the assets of one or more broadcast businesses operated by the Company (including by way of the transfer of capital stock) for all or substantially all the assets (including by way of the transfer of capital stock) constituting one or more broadcast businesses operated by another Person, in which event the foregoing requirement with respect to the receipt of cash or Cash Equivalents shall not apply) and shall be is received at the time of such disposition; provided that, for purposes of this clause disposition and (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3iii) upon the consummation of an Asset Sale, the Company shall applyapplies, or cause causes such Restricted Subsidiary to apply, the such Net Cash Proceeds relating to such Asset Sale within 365 180 days of receipt thereof either:
thereof, either (aA) to permanently reduce Indebtedness under the Credit Agreement and, in the case of repay any such Indebtedness under any 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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) On the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors Senior Debt of the Company or any Indebtedness of such Restricted a 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 Indebtednesssuch Senior Debt relates to principal under a revolving credit or similar facility, to all holders obtain a corresponding reduction in the commitments thereunder), (B) to reinvest, or to be contractually committed to reinvest pursuant to a binding agreement, in Productive Assets and, in the latter case, to have so reinvested within 360 days of the date of receipt of such Pari Passu Indebtedness, on a date Net Cash Proceeds or (C) to purchase Securities tendered 52 -44- to 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 such Pari Passu Indebtedness) (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 Company for purchase at a price equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchased, Accreted Value thereof plus accrued and unpaid interest thereon, if any, to the date of purchasepurchase pursuant to an offer to purchase made by the Company as set forth below (a "Net Proceeds Offer"); provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of may defer making a Net Proceeds Offer until 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 aggregate Net Cash Proceeds thereof shall be from Asset Sales not otherwise 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 4.15 equal to or in excess of exceed $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.105,000,000.
(cb) Notwithstanding Sections 4.10(a) and Subject to the deferral right set forth in the final proviso of paragraph (ba), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% each notice of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each a Net Proceeds Offer will be mailed mailed, by first class mail, to Holders of Securities not more than 180 days after the record Holders relevant Asset Sale or, in the event the Company or a Subsidiary has entered into a binding agreement as shown on the register of Holders provided in (B) above, within 25 180 days following the Net Proceeds Offer Trigger Datetermination of such agreement but in no event later than 360 days after the relevant Asset Sale. Such notice will specify, with a copy to among other things, the Trusteepurchase date (which will be no earlier than 30 days nor later than 45 days from the date such notice is mailed, except as otherwise required by law) and shall will otherwise comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders holders of Securities may elect to tender their Notes Securities in whole or in part in integral multiples of $1000 in exchange for cash1,000. To the extent Holders holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness Securities in an amount exceeding the Net Proceeds Offer AmountOffer, the tendered Notes and Pari Passu Indebredness Securities of tendering holders will be purchased repurchased on a pro rata basis (based on amounts upon the principal amount at maturity tendered) in an . To the extent that the aggregate principal amount equal at maturity of Securities tendered pursuant to the any Net Proceeds Offer Amount (if any)is less than the amount of Net Cash Proceeds 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 Securities for any purposes otherwise permitted by this Indenture. A Upon the consummation of any Net Proceeds Offer, the amount of Net Cash Proceeds subject to any future Net Proceeds Offer from the Asset Sales giving rise to such Net Cash Proceeds shall remain open for a period of 20 business days or such longer period as may be required by lawdeemed to be zero. The Company shall 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 Securities pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this.
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:
unless (1i) 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 's Board of Directors);
; (2ii) at least 7580% 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 or Cash Equivalents and shall be is received at the time of such disposition; provided that, for purposes of this clause and (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
either (aA) to permanently reduce Indebtedness under the Credit Agreement prepay any Senior Debt and, in the case of any such Indebtedness Senior Debt under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility;
, (bB) 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”"); or
, or (cC) a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) . 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 clause (3)(aiii)(A), (3)(biii)(B) and or (3)(ciii)(C) of Section 4.10(a) the next preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, 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 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to 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, thereon to the date of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10covenant. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 5.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 5.0 million, shall be applied as required pursuant to this Section 4.10(b)paragraph). In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a 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 4.10 covenant, and shall comply with the provisions of this Section 4.10 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 4.10.
(c) 4.16. Notwithstanding Sections 4.10(a) and (b)the two immediately preceding paragraphs, the Company and its Restricted Subsidiaries will shall be permitted to consummate an Asset Sale without complying with such Sections paragraphs to the extent that:
(1i) at least 7580% of the consideration for such Asset Sale constitutes Replacement Assets; and
Assets and (2ii) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) paragraph shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03two preceding paragraphs. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 1,000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness of tendering Holders will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this.
Appears in 1 contract
Sources: Indenture (Dyncorp)
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an engage in any Asset Sale unless:
unless (1i) the Company or the applicable such Restricted 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 Properties sold or otherwise disposed of pursuant to the Asset Sale, (as determined in good faith by the Company’s Board of Directors);
(2ii) at least 7585% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from in respect of such Asset Sale shall be consists of cash, Cash Equivalents or properties used in the form Oil and Gas Business of cash or Cash Equivalents and shall be received at the time of such disposition; provided that, for purposes of this clause (2) any securities, notes or other obligations received by the Company or its Restricted Subsidiaries and (iii) the Company delivers to the Trustee an Officers' Certificate certifying that such Asset Sale complies with clauses (i) and (ii) of this Section 10.17(a). The amount (without duplication) of any such Restricted Subsidiary from such transferee that are converted by Indebtedness (other than Subordinated Indebtedness) of the Company or such Restricted Subsidiary into cash or Cash Equivalents (to that is expressly assumed by the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to transferee in such Asset Sale within 365 days of receipt thereof either:
(a) and with respect to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this paragraph (each, a “Net Proceeds Offer Amount”) shall be applied by which 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 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 such Pari Passu Indebtedness) (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 Company or any Restricted Subsidiary of the CompanySubsidiary, 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 unconditionally released by the Net Cash 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 $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 holder of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold Indebtedness, shall be deemed to be Net cash or Cash Proceeds Equivalents for purposes of this Section 4.10clause (ii) and shall also be deemed to constitute a repayment of, and a permanent reduction in, the amount of such Indebtedness for purposes of the following paragraph.
(cb) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by If the Company or any of its Restricted Subsidiaries Subsidiary engages in connection with any an Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to Sale, the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that Company or such Restricted Subsidiary may either, no later than 360 days after such Asset Sale, (i) apply all or any of the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply Net Available Proceeds therefrom to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional repay Indebtedness (other than Permitted Subordinated Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(4) that, unless the Company defaults or any Restricted Subsidiary, provided 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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thiseach case
Appears in 1 contract
Sources: Indenture (KCS Energy 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 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);
(2) at least 75% of the consideration received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents and shall be is received at the time of such disposition; provided that, for purposes that the amount of this clause (2x) any securities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes and other than liabilities consisting of Disqualified Capital Stock) (i) that are assumed by the transferee of any such assets and from which the Company and its Restricted Subsidiaries are unconditionally released or (ii) in respect of which neither the Company nor any Restricted Subsidiary following such sale has any obligation and (y) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly, but in no event more than 60 days after receipt, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will ), shall be considered “cash” or “Cash Equivalents”deemed to be cash for purposes of this provision; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 450 days of receipt thereof either:
(aA) to permanently reduce repay any secured Indebtedness under (other than (1) Subordinated Obligations and (2) in the Credit Agreement event the Notes become secured by a Lien on any property or assets, Indebtedness secured equally and ratably in such property or assets or secured by Liens junior in priority to the Liens securing the Notes) 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;
(bB) to make reinvest in Productive Assets (and to the extent such reinvestment constitutes an investment in properties and assets that replace the properties and assets that were the subject of Investment, 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”reinvestment complies with Section 4.8); or
(cC) a combination of prepayment repayment and investment permitted by the foregoing clauses (3)(a3)(A) and (3)(b3)(B).
(b) . On the 366th 451st 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)(a3)(A), (3)(b3)(B) and (3)(c3)(C) of Section 4.10(a) the immediately preceding sentence (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(a3)(A), (3)(b3)(B) and (3)(c3)(C) of Section 4.10(a) or the last proviso of this paragraph immediately preceding sentence (each, each a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase for cash (the “Net Proceeds Offer”) to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 45 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) pari passu Indebtedness that is subject to a similar repurchase offer requirement on a pro rata basis, the maximum that amount of Notes and Pari Passu such pari passu Indebtedness that may be purchased with equal to the Net Proceeds Offer Amount at a price in cash equal to 100% of the principal amount of the Notes and Pari Passu such pari passu Indebtedness to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest interest, dividends or other earnings 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 4.10. The Company covenant.
(b) Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $30.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may defer 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 until there is an aggregate unutilized Trigger Date relating to such initial Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more all Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). In the event of the transfer of substantially all (but not all) of the property and assets of by the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01aggregates at least $30.0 million, at 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 4.10 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 time the Company or its such Restricted Subsidiaries deemed Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to be sold make a Net Proceeds Offer (the first date the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $30.0 million or more shall be deemed to be a Net Cash Proceeds for purposes of this Section 4.10Offer Trigger Date).
(c) Notwithstanding Sections 4.10(aparagraphs (a) and (b)) of this Section 4.12, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections paragraphs to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement AssetsProductive Assets (and to the extent any of such Productive Assets constitutes an Investment, such Investment complies with Section 4.8); and
(2) such Asset Sale is for at least fair market valuevalue (as determined in good faith by the Company’s Board of Directors); provided that any consideration not constituting Replacement Productive Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) paragraph shall constitute Net Cash Proceeds and shall be subject to the provisions of Sections 4.10(a) and (b). The provisions this covenant with respect to the application of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion TransactionNet Cash Proceeds; provided that at the time of entering into such transaction or immediately after giving effect thereto, no Default or Event of Default shall have occurred or be continuing or would occur as a consequence thereof.
(id) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within Within 25 days following the Net Proceeds Offer Trigger Date, the Company shall mail or cause the Trustee to mail (in the Company’s name and at its expense) notice of a Net Proceeds Offer to the Holders of the Notes at their last registered addresses with a copy to the Trustee, Trustee and the Paying Agent. The Net Proceeds Offer shall comply with remain open from the procedures set forth in this Indenturetime of mailing for at least 20 Business Days and until the close of business on the third Business Day prior to the Net Proceeds Offer Payment Date or such longer period as may be required by Law. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice The notice, which shall govern the terms of the Net Proceeds Offer, shall state:
(1i) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment4.12;
(2ii) the purchase price (including the amount of accrued and unpaid interest, if any) for each Note and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3iii) that any Note not tendered or accepted for payment will continue to accrue interest if interest is then accruingin accordance with the terms thereof;
(4iv) that, unless the Company defaults in making payment therefor, that any Note accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment DateDate unless the Company shall fail to make payment therefor;
(5v) that Holders electing to have a Note Notes purchased pursuant to a Net Proceeds Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, their Notes to the Paying Agent at the address specified in the notice prior to the close of business 5:00 p.m., New York City time, on the third business day prior to Business Day immediately preceding the Net Proceeds Offer Payment DateDate and must complete any form letter of transmittal proposed by the Company and acceptable to the Trustee and the Paying Agent;
(6vi) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second third Business Day immediately preceding the Net Proceeds Offer Payment Date, a telex or facsimile transmission (confirmed by overnight delivery of the original thereof) or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase purchase, the Note certificate number (if any) and a statement that such Holder is withdrawing his election to have such Note Notes purchased; and;
(7vii) that if Notes and, if applicable, other pari passu Indebtedness in a principal amount in excess of the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice Holders’ pro rata share of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the are tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer, the Company shall purchase Notes and, if applicable, such other Indebtedness on a pro rata basis among the Notes and other Indebtedness tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1.00 or integral multiples thereof shall be acquired);
(viii) that Holders whose Notes are purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered; and
(ix) the instructions that Holders must follow in order to tender their Notes. To On or before the extent that Net Proceeds Offer Payment Date, the provisions Company shall (i) accept for payment, on a pro rata basis among the Notes, Notes or portions thereof tendered pursuant to the Net Proceeds Offer, (ii) deposit with the Paying Agent money, in immediately available funds, in an amount sufficient to pay the purchase price of all Notes or portions thereof so tendered and accepted and (iii) deliver to the Paying Agent the Notes so accepted together with an Officer’s Certificate setting forth the Notes or portions thereof tendered to and accepted for payment by the Company. The Paying Agent shall promptly mail or deliver to Holders of Notes so accepted payment in an amount equal to the purchase price, and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Note equal in principal amount to any unpurchased portion of the Note surrendered. Any Notes not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Paying Agent shall promptly deliver to the Company the balance of any securities laws or regulations conflict with thismoneys held by the Paying Agent after payment to the Holders of Notes as aforesaid.
Appears in 1 contract
Sources: Indenture (USA Direct, 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 unless:
unless (1i) the Company or the applicable Restricted 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 sold or otherwise disposed of as determined by the good-faith judgment of the Board of Directors evidenced by a Board Resolution and (ii) at least 85% of the consideration received for such sale or other disposition consists of cash or cash equivalents or the assumption of unsubordinated Indebtedness. The Company shall, or shall cause the relevant Restricted Subsidiary to, within 270 days after the date of receipt of the Net Cash Proceeds from an Asset Sale (A), (i) apply an amount equal to such Net Cash Proceeds to permanently repay unsubordinated Indebtedness of the Company or Indebtedness of any Restricted Subsidiary, in each case owing to a Person other than the Company or any of its Restricted Subsidiaries or (B) invest an equal amount, or the amount not so applied pursuant to clause (A) in property or assets of a nature or type or that are used in a business (or in a company having property and assets of a nature or type, or engaged in a business) similar or related to the nature or type of the property and assets of, or the business of, the Company and its Restricted Subsidiaries existing on the date of such investment (as determined in good faith by the Company’s Board of Directors);
, whose determination shall be conclusive and evidenced by a Board Resolution) and (2ii) at least 75% apply (no later than the end of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from 270-day period referred to above) such Asset Sale shall be in the form of cash or excess Net Cash Equivalents and shall be received at the time of such disposition; provided that, for purposes of this clause (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents Proceeds (to the extent not applied pursuant to clause (i)) as provided in the following paragraphs of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation this Section 1017. The amount of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating required to be applied (or to be committed to be applied) during such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) On the 366th 270-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 period as set forth in clauses clause (3)(a), (3)(b) and (3)(ci) of Section 4.10(a) (eachthe preceding sentence and not applied as so required by the end of such period shall constitute "Excess Proceeds." If, a “Net Proceeds Offer Trigger Date”)as of the first day of any calendar month, such the aggregate amount of Net Cash Excess Proceeds that have not been applied on or before such Net theretofore subject to an Excess Proceeds Offer Trigger Date (as permitted in clauses (3)(a)defined below) totals at least $10.0 million, (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this paragraph (each, a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to must, not later than the thirtieth Business Day thereafter, make an offer (an "Excess Proceeds Offer") to purchase (from the “Net Proceeds Offer”) to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum basis an aggregate principal amount of Notes and Pari Passu Indebtedness that may be purchased with equal to the Net Excess Proceeds Offer Amount on such date, at a purchase price equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchasedNotes, plus plus, in each case, 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 purchase (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"Excess Proceeds Payment"), 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. The Company may defer the Net shall commence an Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 by mailing 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections notice to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) Trustee and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that each holder stating: (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Excess Proceeds Offer is being made pursuant to this Section 4.10 1017 and that (subject to the provisions hereof) all Notes validly tendered will be accepted for payment;
payment on a pro rata basis; (2ii) the purchase price (including the amount of accrued interest) and the date of purchase date (which shall be a Business Day no earlier than 30 days nor later than 60 days from the Net date such notice is mailed) (the "Excess Proceeds Offer Payment Date");
; (3iii) that any Note not tendered will continue to accrue interest if interest is then accruing;
pursuant to its terms; (4iv) that, unless the Company defaults in making the payment thereforof the Excess Proceeds Payment, any Note accepted for payment pursuant to the Net Excess Proceeds Offer shall cease to accrue interest on and after the Net Excess Proceeds Offer Payment Date;
; (5v) that Holders holders electing to have a Note purchased pursuant to a Net the Excess Proceeds Offer will be required to surrender the Note, together with the form entitled “"Option of the Holder to Elect Purchase” " on the reverse side 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 Business Day immediately preceding the Net Excess Proceeds Offer Payment Date;
; (6vi) that Holders holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, the close of business on the second third Business Day immediately preceding the Net Excess Proceeds Offer Payment Date, a telegram, facsimile transmission or letter setting forth the name of the Holdersuch holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder holder is withdrawing his election to have such Note Notes purchased; and
and (7vii) that holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice unpurchased portion of the Net Proceeds Offer, Holders may elect to tender their Notes surrendered; provided that each Note purchased -------- and each new Note issued shall be in whole a principal amount of $1,000 or in part in integral multiples of $1000 in exchange for cashthereof. To On the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Excess Proceeds Offer AmountPayment Date, the tendered Notes and Pari Passu Indebredness will be purchased Company shall (i) accept for payment on a pro rata basis Notes or portions thereof tendered pursuant to the Excess Proceeds Offer; (based on amounts tenderedii) deposit with the Paying Agent money sufficient to pay the purchase price of all Notes or portions thereof so accepted; and (iii) deliver, or cause to be delivered, to the Trustee all Notes or portions thereof so accepted together with an Officers' Certificate specifying the Notes or portions thereof accepted for payment by the Company. The Paying Agent shall promptly mail to the holders of Notes so accepted payment in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer purchase price, and the Trustee shall remain open for upon Company Order promptly authenticate and mail to such holders a period new Note equal in principal amount to any unpurchased portion of 20 business days the Note surrendered; provided that each Note -------- purchased and each new Note issued shall be in a principal amount of $1,000 or such longer period as may be required by lawintegral multiples thereof. The Company will publicly announce the results of the Excess Proceeds Offer as soon as practicable after the Excess Proceeds Payment Date. For purposes of this Section 1017, the Trustee shall act as the Paying Agent. 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 applicable, in connection the event that such Excess Proceeds are received by the Company under this Section 1017 and the Company is required to repurchase Notes as described above. SECTION 1018. Limitation on Issuances of Guarantees of Indebtedness ----------------------------------------------------- by Restricted Subsidiaries. -------------------------- The Company will not permit any Restricted Subsidiary, directly or indirectly, to guarantee, assume or in any other manner become liable with respect to any Indebtedness of the repurchase Company, other than Indebtedness under Credit Facilities incurred under clauses (i) and (ix) in paragraph (b) of Section 1011, unless (i) such Restricted Subsidiary simultaneously executes and delivers a supplemental indenture to the Indenture providing for a Guarantee of the Notes pursuant on terms substantially similar to the guarantee of such Indebtedness, except that if such Indebtedness is by its express terms subordinated in right of payment to the Notes, any such assumption, Guarantee or other liability of such Restricted Subsidiary with respect to such Indebtedness shall be subordinated in right of payment to such Restricted Subsidiary's assumption, Guarantee of other liability with respect to the Notes substantially to the same extent as such Indebtedness is subordinated to the Notes and (ii) such Restricted Subsidiary waives, and will not in any manner whatsoever claim or take the benefit or advantage of, any rights or reimbursement, indemnity or subrogation or any other rights against the Company or any other Restricted Subsidiary as a Net Proceeds Offer. To the extent that the provisions result of any securities laws payment by such Restricted Subsidiary under its Guarantee. Notwithstanding the foregoing, any Guarantee by a Restricted Subsidiary may provide by its terms that it will be automatically and unconditionally released and discharged upon (i) any sale, exchange or regulations conflict with thistransfer, to any Person not an Affiliate of the Company, of all of the Company's and each Restricted Subsidiary's Capital Stock in, or all or substantially all of the assets of, such Restricted Subsidiary (which sale, exchange or transfer is not prohibited by the Indenture) or (ii) the release or discharge of the guarantee which resulted in the creation of such Guarantee, except a discharge or release by or as a result of payment under such guarantee.
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 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 's Board of Directors);
(2ii) at least 75% of the consideration received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents and shall be is received at the time of such disposition; provided thatthat the amount of (x) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), for purposes of this clause the Company or any Restricted Subsidiary (2other than (I) contingent liabilities (except to the extent reflected (or reserved for) on a balance sheet of the Company or any Restricted Subsidiary as of the date prior to the date of consummation of such transaction) and (II) liabilities that are by their terms subordinated to the Notes or the Guarantees) that are assumed by the transferee of any such assets and (y) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 90 days by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the so received), shall be deemed to be cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”for purposes of this provision; and
(3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 180 days of receipt thereof either:
either (aA) to permanently reduce prepay any Senior Indebtedness under the Credit Agreement and, in the case of any such Senior Indebtedness under any revolving credit facilityCredit Facility, effect a permanent reduction in the availability under such revolving credit facility;
Credit Facility, (bB) to make an investment in properties and assets (other than cash, Cash Equivalents or inventory) 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 a Permitted Business (“"Replacement Assets”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 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 such Pari Passu Indebtedness) (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 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 4.10. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this------------------
Appears in 1 contract
Sources: Indenture (Everest One Ipa Inc)
Limitation on Asset Sales. (a) The Prior to the occurrence of the Fall-Away Event, the Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an any Asset Sale unless:
unless (1i) the Company or the applicable Restricted Subsidiary, as the case may be, such Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets sold included in such Asset Sale, (ii) immediately before and immediately after giving effect to such Asset Sale, no Default or otherwise disposed Event of Default shall have occurred and be continuing and (as determined in good faith by the Company’s Board of Directors);
(2iii) at least 75% of the consideration received by the Company or such Subsidiary therefor is in the Restricted form of cash paid at the closing thereof, provided, however, that this clause (iii) shall not apply if, after giving effect to such Asset Sale, the aggregate principal amount of all notes or similar debt obligations and Fair Market Value of all equity securities received by the Company from all Asset Sales since September 25, 2000 (other than such notes or similar debt obligations and such equity securities converted into or otherwise disposed of for cash and applied in accordance with the second succeeding sentence) would not exceed 2.5% of Consolidated Tangible Assets at such time. The amount (without duplication) of any (x) Indebtedness (other than Subordinated Indebtedness) of the Company or such Subsidiary that is expressly assumed by the transferee in such Asset Sale and with respect to which the Company or such Subsidiary, as the case may be, from such Asset Sale shall be in is unconditionally released by the form of cash or Cash Equivalents and shall be received at the time holder of such disposition; provided that, for purposes of this clause Indebtedness and (2y) any securitiesnotes, notes securities or other similar obligations or items of property received by the Company or any such Restricted Subsidiary from such transferee that are converted immediately converted, sold or exchanged by the Company or such Restricted Subsidiary into for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents actually so received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso shall be deemed to be cash for purposes of this 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 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 such Pari Passu Indebtedness) (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 Section 4.12. If at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Companysuch 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 the date of such conversion or disposition shall be deemed to constitute the date of an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.104.12. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). In the event of the A transfer of substantially all (but not all) of the property and assets of by the Company and its Restricted Subsidiaries as an entirety to a Person in Wholly Owned Subsidiary or by a transaction permitted under Section 5.01, which transaction does not constitute a Change of Control, the successor corporation shall be deemed Wholly Owned Subsidiary to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it 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 another Wholly Owned Subsidiary will not be deemed to be Net Cash Proceeds for purposes an Asset Sale, and a transfer of this assets that constitutes a Restricted Payment and that is permitted under Section 4.104.10 hereof will not be deemed to be an Asset Sale.
(cb) Notwithstanding Sections 4.10(a) and (b)Prior to the occurrence of the Fall-Away Event, if the Company or any Subsidiary engages in an Asset Sale, the Company or such Subsidiary shall, no later than 360 days after such Asset Sale, (i) apply all or any of the Net Proceeds therefrom to repay Indebtedness that ranks pari passu with the Notes and its Restricted Subsidiaries will be permitted to consummate an is secured by the assets disposed of in the Asset Sale without complying or to repay Bank Debt in accordance with such Sections to the extent that:
applicable provisions thereof, (1ii) at least 75% invest all or any part of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by Net Proceeds therefrom in the lines of business of the Company or any of its Restricted Subsidiaries in connection with immediately prior to such investment or (iii) any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions combination of Sections 4.10(aclauses (i) and (b)ii) above. The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation amount of such Inversion Transaction; Net Proceeds not applied or invested as provided in this paragraph (iib) immediately following such Inversion Transactionwill constitute “Excess Proceeds.”
(c) Prior to the occurrence of the Fall-Away Event, when the aggregate amount of Excess Proceeds equals or exceeds $5,000,000, the Company shall apply be required to S&P and ▇▇▇▇▇’▇ make an offer to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; purchase (iiian “Asset Sale Offer”) immediately following such Inversion Transactionfrom all Holders, the Company’s Consolidated Fixed Charge Coverage Ratio is at least an aggregate principal amount of Notes equal to the Consolidated Fixed Charge Coverage Ratio immediately prior amount of such Excess Proceeds as follows:
(i) The Company shall make an Asset Sale Offer to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) all Holders in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply accordance with the procedures set forth in this Indenture. Section 4.12 to purchase the maximum principal amount (expressed as a multiple of $1,000) of Notes that may be purchased out of the amount (the “Asset Sale Payment Amount”) of such Excess Proceeds.
(ii) The notice offer price for the Notes shall be payable in cash in an amount equal to 100% of the principal amount of the Notes tendered pursuant to such Asset Sale Offer, plus accrued and unpaid interest and Additional Interest, if any, to the Holders shall contain all instructions and materials necessary to enable date such Holders to tender Asset Sale Offer is consummated (the “Asset Sale Purchase Price”), in accordance with the procedures set forth in this Section 4.12. To the extent that the aggregate Asset Sale Purchase Price of Notes tendered pursuant to an Asset Sale Offer is less than the Asset Sale Payment Amount relating thereto (such shortfall constituting a “Net Proceeds Deficiency”), the Company may use such Net Proceeds Deficiency, or a portion thereof, for general corporate purposes.
(iii) If the aggregate Asset Sale Purchase Price of Notes validly tendered and not withdrawn by holders thereof exceeds the Asset Sale Payment Amount, Notes to be purchased shall be selected on a pro rata basis.
(iv) Upon completion of such Asset Sale Offer in accordance with the foregoing provisions, the amount of Excess Proceeds with respect to which such Asset Sale Offer was made shall be deemed to be zero. In the event that any other Indebtedness of the Company which ranks pari passu with the Notes (“Other Debt”) requires an offer to purchase to be made to repurchase such Other Debt upon the consummation of an Asset Sale, the Company may apply the Excess Proceeds to both purchase such Other Debt and to make an Asset Sale Offer, provided, that the purchase price of such Other Debt does not exceed 100% of the aggregate principal amount or accreted value thereof plus interest thereon. Such With respect to any Excess Proceeds, the Company shall make the Asset Sale Offer in respect thereof at the same time as the analogous offer to purchase is made pursuant to any Other Debt and the purchase date in respect thereof shall be the same as the purchase date in respect thereof pursuant to any Other Debt. With respect to any Asset Sale Offer effected pursuant to this Section 4.12, to the extent the aggregate principal amount of Notes and Other Debt, if any, tendered pursuant to such Asset Sale Offer and the concurrent offer to purchase with respect to such Other Debt exceeds the Excess Proceeds, such Notes and Other Debt, if any, shall be purchased pro rata based on the aggregate principal amount of such Notes and such Other Debt tendered by each holder thereof.
(d) If the Company is required to make an Asset Sale Offer, the Company shall, within 30 days following the date specified in clause (c) above, notify the Trustee thereof and give written notice shall stateof such Asset Sale Offer to each Holder by first-class mail, postage prepaid, at the address of such Holder appearing in the register maintained by the Registrar, stating:
(1) that the Net Proceeds an Asset Sale Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment4.12;
(2) that such Holders have the right to require the Company to apply the Excess Proceeds to repurchase the Notes at a purchase price (including in cash equal to 100% of the principal amount of thereof plus accrued and unpaid interest) and , if any, to the purchase date (which shall be no earlier than 30 days and not later than 60 days from the Net date such notice is mailed (the “Excess Proceeds Offer Payment Date”);
(3) that any Note not tendered or accepted for payment will continue to accrue interest if interest is then accruinginterest;
(4) that, unless the Company defaults in making payment therefor, that any Note Notes accepted for payment pursuant to the Net Proceeds Asset Sale Offer shall cease to accrue interest after the Net Excess Proceeds Offer Payment Date;
(5) that Holders electing accepting the offer to have a Note their Notes purchased pursuant to a Net Proceeds the Asset Sale Offer will be required to surrender the NoteNotes, 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 Business Day preceding the Net Excess Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election acceptance of the Asset Sale Offer if the Paying Agent receives, not later than 5:00 p.m., New York City time, the close of business on the second third Business Day preceding the Net Excess Proceeds Offer Payment Date, a telegram, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his or her election to have such Note Notes purchased; and;
(7) that if the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice aggregate principal amount of Notes surrendered by Holders exceeds the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples amount of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer AmountExcess Proceeds, the tendered Company shall select the Notes and Pari Passu Indebredness will to be purchased on a pro rata basis so that the aggregate amount of Notes so purchased equals the amount of Excess Proceeds (based on amounts tendered) with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased);
(8) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered; provided that each Note purchased and each such new Note issued shall be in an aggregate original principal amount of $1,000 or an integral multiple thereof;
(9) the calculations used in determining the amount of Excess Proceeds to be applied to the purchase of such Notes;
(10) any other procedures that a Holder must follow to accept an Asset Sale Offer or effect withdrawal of such acceptance; and
(11) the name and address of the Paying Agent. On the Excess Proceeds Payment Date, the Company shall, to the extent lawful, (1) accept for payment, on a pro rata basis to the extent necessary, Notes or portions thereof tendered pursuant to the Asset Sale Offer, (2) deposit with the Paying Agent US legal tender sufficient to pay the purchase price plus accrued and unpaid interest, if any, on the Notes to be purchased or portions thereof, (3) deliver or cause to be delivered to the Trustee Notes so 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 Paying Agent shall promptly mail to each Holder of Notes so accepted payment in an amount equal to the Net Proceeds Offer Amount purchase price for such Notes, and the Company shall execute and issue, and the Trustee shall promptly authenticate and make available for delivery to such Holder, a new Note equal in principal amount to any unpurchased portion of the Notes surrendered; provided that each Note purchased and each such new Note issued shall be in an original principal amount of $1,000 or an integral multiple thereof.
(if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. e) 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 a Net Proceeds an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis Section 4.12, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.12 by virtue thereof.
Appears in 1 contract
Sources: Indenture (Healthsouth Corp)
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 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);
(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 or Cash Equivalents and shall be received at the time of such disposition; provided that, for . For purposes of this clause (2) each of the following shall be deemed to be cash:
(a) any liabilities, as shown on the most recent consolidated balance sheet of the Company or any Restricted Subsidiary (or would be shown on such consolidated balance sheet as of the date of such Asset Sale), other than contingent liabilities and liabilities that are by their terms subordinated to the notes or any Guarantee, or any Guarantees of Indebtedness of Persons other than the Company or any Restricted Subsidiary, that are assumed by the person acquiring such assets to the extent that the Company and its Restricted Subsidiaries have no further liability with respect to such liabilities;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 90 days after receipt will be considered “cash” or “Cash Equivalents”receipt; and
(c) any Designated Non-Cash Consideration received by the Company or its Restricted Subsidiaries in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (c) that is at that time outstanding in the aggregate, not to exceed the greater of (i) $35 million and (ii) 1.0% of the Company’s Consolidated Total Assets, in each case at the time of receipt of such Designated Non-Cash Consideration, with the Fair Market Value of each item of Designated Non-Cash Consideration measured at the time received and without giving effect to subsequent changes in value;
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness (x) under the any Credit Agreement Facility and, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility (provided, however that, if there shall not be any term loan Indebtedness outstanding under any Credit Facility, in the case of such Indebtedness under any revolving credit facility such prepayment shall not be required to effect a permanent reduction in the availability under such revolving credit facility) or (y) of a Subsidiary that does not guarantee the Notes;
(b) to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale or in properties and assets (including Capital Stock) that will be used in the business of the Company and its Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably related thereto (“Replacement Assets”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 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 such Pari Passu Indebtedness) (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 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 4.10. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 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 $10.0 25.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 entity shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Supplemental Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 1,000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness Indebtedness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis Section 4.10, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue thereof.
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 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 's Board of Directors);
(2ii) 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 or Cash Equivalents and shall be is received at the time of such disposition; provided that, for purposes that the amount of this clause (2a) any securitiesliabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets, and (b) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days after such Asset Sale (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will shall be considered “cash” or “Cash Equivalents”deemed to be cash for the purposes of this provision; and
(3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 270 days of receipt thereof either:
either (aA) to permanently reduce Indebtedness under the Credit Agreement prepay any Senior Debt or Guarantor Senior Debt and, in the case of any such Indebtedness Senior Debt under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility;
, (bB) to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale expenditures for Replacement Assets 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”); or
(cC) a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) . On the 366th 271st 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), iii)(A) through (3)(b) and (3)(ciii)(C) of Section 4.10(a) the preceding paragraph (each, each a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(a), iii)(A) through (3)(b) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this preceding paragraph (each, each a “"Net Proceeds Offer Amount”") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “a "Net Proceeds Offer”") to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “"Net Proceeds Offer Payment Date”") not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to 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 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 4.104.16. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 5.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 5.0 million, shall be applied as required pursuant to this Section 4.10(bparagraph)). To the extent the aggregate amount of the Notes tendered pursuant to the Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use such deficiency for general corporate purposes. Upon completion of such offer to purchase, the Net Proceeds Offer Amount shall be reset at zero. 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 4.10 4.16, and shall comply with the provisions of this Section 4.10 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 shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.4.16. 64 -57-
(cb) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will pursuant to this Section 4.16 shall be mailed or caused to be mailed, by first class mail, by the record Holders as shown on the register of Holders Company within 25 days following after the Net Proceeds Offer Trigger DateDate to all Holders at their last registered addresses, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice Offer and shall statestate the following terms:
(1i) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and 4.16, that (subject to the provisions hereof) all Notes tendered will be accepted for payment; provided, however, that if the aggregate principal amount of Notes tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate Net Proceeds Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 or 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;
(2ii) the purchase price (including the amount of accrued interest) and the purchase date Net Proceeds Offer Payment Date (which shall be not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Payment DateTrigger Date and which shall be at least five Business Days after the Trustee receives notice thereof from the Company);
(3iii) that any Note not tendered will continue to accrue interest if interest is then accruinginterest;
(4iv) 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;
(5v) that Holders electing to have a Note purchased pursuant to a Net Proceeds Offer will be required to surrender the Note, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third business day Business Day prior to the Net Proceeds Offer Payment Date;
(6vi) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding 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 Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7vii) that Holders whose Notes are purchased only in part will be issued new Notes in a principal amount equal to the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice unpurchased portion of the Net Proceeds OfferNotes surrendered; provided, Holders may elect to tender their Notes however, that each Note purchased and each new Note issued shall be in whole an original principal amount of $1,000 or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding thereof; On or before the Net Proceeds Offer AmountPayment Date, the Company shall (i) accept for payment Notes or portions thereof tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal pursuant to the Net Proceeds Offer Amount which are to be purchased in accordance with item (b)(i) above, (ii) deposit with the Paying Agent in accordance with Section 2.14 U.S. Legal Tender sufficient to pay the purchase price plus accrued interest, if any), of all Notes to be purchased and (iii) deliver to the Trustee Notes so accepted together with an Officers' Certificate stating the Notes or portions thereof being purchased by the Company. A The Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an amount equal to the purchase price plus accrued interest, if any. For purposes of this Section 4.16, the Trustee shall act as the Paying Agent. The Trustee shall promptly authenticate and mail to such Holders new Notes equal in principal amount to any unpurchased portion of the Notes surrendered. Upon the payment of the purchase price for the Notes accepted for purchase, the Trustee shall return the Notes purchased to the Company for cancellation. Any monies remaining after the purchase of Notes pursuant to a Net Proceeds Offer shall remain open for a period be returned within three Business Days by the Trustee to the Company except with respect to monies owed as obligations to the Trustee pursuant to Article Seven. For purposes of 20 business days or such longer period this Section 4.16, the Trustee shall act as may be required by law. the Paying Agent.
(c) The Company shall 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 thisthe provisions of this Section 4.16, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations under the provisions of this Section 4.16 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 Asset Sale unless:
(1i) 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 238 -58- assets sold or otherwise disposed of (as determined in good faith by the Company’s 's Board of Directors);
(2ii) 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 or Cash Equivalents and shall be received at (provided that the time amount of any liabilities (as shown on the Company's or such disposition; provided that, for purposes Subsidiary's most recent balance sheet) of this clause (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee (other than liabilities that are converted by their terms subordinated to the Notes) that are assumed by the Company or transferee of any such Restricted Subsidiary into assets shall be deemed to be cash or Cash Equivalents (to for the extent purposes of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”this provision); and
(3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 180 days of receipt thereof either:
(aA) to permanently reduce Indebtedness under prepay any Senior Debt in accordance with the terms of the Credit Agreement and, in the case of any such Indebtedness under any revolving credit facilitythe Revolving Credit Facility (as defined in the Credit Agreement), effect a permanent reduction in the availability under such revolving credit facility;Revolving Credit Facility,
(bB) to the extent permitted by the Credit Agreement, 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 the same, similar or reasonably related thereto (“"Replacement Assets”"); , or
(cC) a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) On . Subject to the 366th last sentence of this paragraph, on the 181st 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 clause (3)(aiii)(A), (3)(biii)(B) and or (3)(ciii)(C) of Section 4.10(a) the next preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, 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 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to 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, but installments of interest, the maturity of which is on or prior to the Proceeds Purchase Date, shall be payable to Holders of record at the close of business on the relevant record dates referred to in Section 2.12; 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 4.10covenant. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million 1,000,000 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 $10.0 million1,000,000, shall be applied as required pursuant to this Section 4.10(b)the preceding paragraph). In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, which transaction does not constitute a Change of Control, the successor corporation entity shall be deemed to have sold such portion, if any, of the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this240 -60-
Appears in 1 contract
Limitation on Asset Sales. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, consummate complete an Asset Sale unless:
(1) the Company or the such applicable Restricted 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 Fair Market Value of the assets sold or otherwise disposed of (as determined in good faith by the Company’s Board of Directors)of;
(2) at least not less than 75% of the consideration received by the Company or the such applicable Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of (A) cash or Cash Equivalents Equivalents, or (B) Replacement Assets, and shall be in each case set forth in subclauses (A) and (B) of this clause (a)(2), is received at the time of such sale or other disposition; provided that, for purposes PROVIDED that the amount of this clause (2i) any securities, notes Debt (other than subordinated Debt) of the Company or other obligations any such applicable Restricted Subsidiary that is actually assumed by the transferee in such Asset Sale and from which the Company and its Restricted Subsidiaries are fully and unconditionally released and (ii) any securities received by the Company or any such applicable Restricted Subsidiary from such transferee that which are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within ten Business Days of such Asset Sale (to the extent of the cash or Cash Equivalents received) within 30 days after receipt ), will be considered “cash” or “Cash Equivalents”deemed to be cash for purposes of this clause (a)(2) and to have been received at the time of such sale; and
(3) upon the consummation of an Asset Sale, Sale Proceeds received by the Company shall applyor such Restricted Subsidiary, as the case may be, are applied, at the option of the Company or cause such Restricted Subsidiary, (A) to prepay, repay or purchase indebtedness under the Credit Facilities or any other secured Debt of the Company or such Restricted Subsidiary to apply, or the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
Other Senior Notes; or (aB) to permanently reduce Indebtedness under the Credit Agreement 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;
(b) to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale are used or in properties and assets (including Capital Stock) that will be used are useful in the business of the Company and or its Restricted Subsidiaries or in businesses reasonably similar to or ancillary to the business of the Company or its Restricted Subsidiaries as existing conducted at the time of such Asset Sale; PROVIDED that (i) such investment occurs or (ii) the Company or any such Restricted Subsidiary enters into contractual commitments to so apply such Asset Sale Proceeds, subject only to customary conditions (other than the obtaining of financing), in each case, within 365 days following the receipt of such Asset Sale Proceeds. If on such 365th day the Issue Date or Available Asset Sale Proceeds exceed $15,000,000, the Company shall apply an amount equal to the Available Asset Sale Proceeds to an offer to repurchase the Notes (and, at its option, to an offer to repurchase other equal and ratable Debt), at a purchase price in businesses reasonably related thereto cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the purchase date (“Replacement Assets”an "Excess Proceeds Offer"); or
. If an Excess Proceeds Offer is not fully subscribed, the Company may retain and use for general corporate purposes the portion (cany such portion, a "Deficiency") a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b)Available Asset Sale Proceeds not required to repurchase Notes. Upon completion of any Excess Proceeds Offer, the amount of Available Asset Sale Proceeds shall be reset to zero.
(b) On If the 366th Company is required to make an Excess Proceeds Offer, the Company shall (1) notify the Trustee thereof at least five Business Days prior to the commencement of the Excess Proceeds Offer and (2) send by first-class mail, postage prepaid, within 30 days of the 365th day after an following the receipt of the Available Asset Sale or such earlier dateProceeds exceeding $15,000,000 as specified in Section 10.10(a)(3), if anya notice to the Trustee and to each Holder, as at the Board address appearing in the register maintained by the Security Registrar, stating the information set forth below. The Excess Proceeds Offer shall remain open for a period of Directors 20 Business Days following its commencement (the "Offer Period"). The notice, which shall govern the terms of the Excess Proceeds Offer, shall state:
(A) that the Company or of such Restricted Subsidiary determines not is offering to apply the Net Cash Proceeds relating to such Available Asset Sale as set forth in clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 andProceeds, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of repurchase 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 such Pari Passu Indebtedness) (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 purchase price in cash equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchasedNotes, plus accrued and unpaid interest thereoninterest, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this 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 $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.purchase date;
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1B) that the Net Excess Proceeds Offer is being made pursuant to this Section 4.10 10.10 and that (subject to the provisions hereof) all Notes tendered length of time the Excess Proceeds Offer will be accepted for paymentremain open;
(2C) the purchase price (including the amount of accrued interest) and the purchase date (which shall be a Business Day no earlier than 30 days nor later than 60 days from the Net Proceeds Offer Payment Datedate such notice is mailed);
(3D) that any Note not tendered or accepted for payment will continue to accrue interest if interest is then accruinginterest;
(4E) that, unless the Company defaults in making a payment thereforpursuant to the Excess Proceeds Offer, any Note Notes accepted for payment pursuant to the Net Excess Proceeds Offer shall cease to accrue interest after the Net Proceeds expiration of the Offer Payment DatePeriod;
(5F) that Holders electing accepting the offer to have a Note purchased pursuant to a Net any 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 Business Day preceding the Net Proceeds Offer Payment Date;purchase date; 103
(6G) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m.the expiration of the Offer Period, New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and;
(7H) that, if the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice aggregate principal amount of Notes surrendered by Holders exceeds the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer AmountAvailable Asset Sale Proceeds, the tendered Company or the Trustee shall select the Notes and Pari Passu Indebredness will to be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or with such longer period adjustments as may be required deemed appropriate by law. The the Company so that only Notes in denominations of US$1,000, or integral multiples of US$1,000, shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder be purchased);
(I) that Holders whose Notes are being purchased only in part will be issued new Notes equal in aggregate principal amount to the extent unpurchased portion of the Notes surrendered; PROVIDED that each Note purchased and each such laws new Note issued shall be in an original principal amount in denominations of US$1,000 and regulations are applicable in connection with the repurchase integral multiples of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisUS$1,000; and
Appears in 1 contract
Sources: Indenture (Norske Skog Canada LTD)
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of 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 's Board of Directors);
, (2ii) 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 or Cash Equivalents and shall be is received at the time of such disposition; provided that, for purposes PROVIDED that the provisions of this clause (2ii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (shall not apply to an Asset Sale to the extent comprised of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”real property; and
and (3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 360 days of receipt thereof either:
either (aA) to permanently reduce prepay any Indebtedness under the New Bank Credit Agreement Facility and, in the case of any such Indebtedness under any revolving credit facilityRevolving Credit Facility, effect a permanent reduction in the availability under such revolving credit facility;
Revolving Credit Facility, (bB) 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 shall 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”"); or
, or (cC) a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) . On the 366th 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)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) the next preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, 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 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata PRO RATA basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to 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; providedPROVIDED, howeverHOWEVER, 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 4.10covenant. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million 5,000,000 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 $10.0 million5,000,000, shall be applied as required pursuant to this Section 4.10(b)paragraph). In Notwithstanding 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b)immediately preceding paragraph, the Company and its Restricted Subsidiaries will shall be permitted to consummate an Asset Sale without complying with such Sections paragraph to the extent that:
(1i) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
Assets and (2ii) such Asset Sale is for fair market value; provided PROVIDED that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) paragraph shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03two preceding paragraphs. Each Net Proceeds Offer will shall be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 1,000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will of tendering Holders shall be purchased on a pro rata PRO RATA basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis covenant, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this covenant 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 Asset Sale unless:
unless (1i) 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 's Board of Directors);
, (2ii) 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 or Cash Equivalents and shall be received at Equivalents; PROVIDED that the time amount of such disposition; provided that, for purposes of this clause (2a) any securitiesliabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets, and (b) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash received), shall be deemed to be cash for the purposes of this provision or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
for purposes of the third paragraph of this covenant, and (3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
either (aA) to permanently reduce Indebtedness under the Credit Agreement prepay any Senior Debt or any Guarantor Senior Debt and, in the case of any such Indebtedness Senior Debt or Guarantor Senior Debt under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility;
, (bB) to make an investment reinvest in properties and assets that replace the properties and assets that were the subject of such Asset Sale Productive Assets, 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”); or
(cC) a combination of prepayment prepayment, repurchase and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) . Pending the final application of any such Net Cash Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Cash Proceeds in Cash Equivalents. 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)(aiii)(A), (3)(biii)(B) and or (3)(ciii)(C) of Section 4.10(a) the next preceding sentence (each, a “Net Proceeds Offer Trigger Date”"NET PROCEEDS OFFER TRIGGER DATE"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, each a “Net Proceeds Offer Amount”"NET PROCEEDS OFFER AMOUNT") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (the “Net Proceeds Offer”"NET PROCEEDS OFFER") to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”"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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum basis that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to 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; providedPROVIDED, howeverHOWEVER, 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 4.10covenant. The Company Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $10.0 million, the application of the Net Cash Proceeds constituting such Net Proceeds Offer Amount to a Net Proceeds Offer may defer 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 until there is an aggregate unutilized Trigger Date relating to such initial Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more all Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). In the event of the transfer of substantially all (but not all) of the property and assets of by the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01aggregates at least $10.0 million, at 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 4.10 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 time the Company or its such Restricted Subsidiaries deemed Subsidiary shall apply all Net Cash Proceeds constituting all Net Proceeds Offer Amounts that have been so deferred to be sold make a Net Proceeds Offer (the first date the aggregate of all such deferred Net Proceeds Offer Amounts is equal to $10.0 million or more shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (ba "NET PROCEEDS OFFER TRIGGER DATE"), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in the Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding the Net Proceeds Offer Amount, Notes of tendering Holders will be purchased on a pro rata basis (based on amounts tendered). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. To the extent that the aggregate amount of Notes tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the Company may use any remaining Net Proceeds Offer Amount for general corporate purposes. Upon completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset at zero.
(b) Subject to the deferral of the Net Proceeds Offer Trigger Date contained in the second paragraph of subsection (a) above, each notice of a Net Proceeds Offer pursuant to this IndentureSection 4.16 shall be mailed or caused to be mailed, by first class mail, by the Company not more than 25 days after the Net Proceeds Offer Trigger Date to all Holders at their last registered addresses as of a date within 15 days of the mailing of such notice, with a copy to the Trustee. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice Offer and shall statestate the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 4.16 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment; PROVIDED, HOWEVER, that if the aggregate principal amount of Notes tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of the Net Proceeds Offer, the Company shall select the Notes to be purchased on a PRO RATA basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 or multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be 20 Business Days from the date of mailing of notice of such Net Proceeds Offer Payment DateOffer, or such longer period as required by law) (the "PROCEEDS PURCHASE DATE"); PROVIDED that the Proceeds Purchase Date for the Notes shall be a date subsequent to any payment dates for the purchase or other repayment of Senior Debt having similar provisions;
(3) that any Note not tendered will continue to accrue interest if interest is then accruinginterest;
(4) that, unless the Company defaults in making payment therefortherefore, any Note accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to a Net Proceeds Offer will be required to surrender the Note, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third business day Business Day prior to the Net Proceeds Offer Payment Purchase Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on five Business Days prior to the second Business Day preceding the Net Proceeds Offer Purchase Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, that Holders may elect to tender their whose Notes are purchased only in part will be issued new Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate principal amount equal to the unpurchased portion of the Notes surrendered; PROVIDED that each Note purchased and each new Note issued shall be in an original principal amount of $1,000 or integral multiples thereof. On or before the Proceeds Purchase Date, the Company shall (i) accept for payment Notes or portions thereof tendered pursuant to the Net Proceeds Offer Amount offer which are to be purchased in accordance with item (b)(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. A The Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an amount equal to the purchase price plus accrued interest, if any. For purposes of this Section 4.16, the Trustee shall act as the Paying Agent. Any amounts remaining after the purchase of Notes pursuant to a Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required returned by lawthe Trustee to the Company. 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 purchase of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthe provisions of this Indenture relating to a Net Proceeds Offer, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations relating to such Net Proceeds offer by virtue thereof.
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 engage in an Asset Sale unless:
unless (1i) the Company or the applicable such Restricted 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 (which, if it exceeds $1 million, shall be determined by, and set forth in, a resolution of the Board of Directors of the Company and described in an Officers' Certificate of the Company delivered to the Trustee) of the assets sold or otherwise (including, if appropriate, Equity Interests) disposed of or issued, as appropriate, and (as determined in good faith by the Company’s Board of Directors);
(2ii) at least 75% of the consideration therefor received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be Subsidiary is in the form of cash or Cash Equivalents Equivalents. For purposes of this Section (and shall be received at the time of such disposition; provided that, not for purposes of any other provision of this clause Indenture), the term "cash" shall be deemed to include (2i) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from as consideration as part of such transferee Asset Sale that are immediately converted by the Company or such Restricted Subsidiary into actual cash or Cash Equivalents (to the extent of the actual cash or Cash Equivalents so received), and (ii) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation any liabilities of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, (as shown on the Net Cash Proceeds relating to most recent balance sheet of the Company or such Asset Sale within 365 days Restricted Subsidiary) that (A) are assumed by the transferee of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(b) to make an investment in properties and assets that replace the properties and assets that were which are the subject of such Asset Sale or as consideration therefor in properties and assets (including Capital Stock) a transaction the result of which is that will be used in the business of the Company and all of its Restricted Subsidiaries as existing on the Issue Date or in businesses reasonably related thereto (“Replacement Assets”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) On the 366th day after an Asset Sale or are released from all liability for 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)assumed liability, (3)(bB) and (3)(c) are not by their terms subordinated in right of Section 4.10(a) (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 clauses (3)(a)payment to the Notes, (3)(bC) and (3)(c) of Section 4.10(a) or the last proviso of this 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 Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”) are not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (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 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 4.10. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisowed
Appears in 1 contract
Sources: Indenture (Louisiana Ship 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 unless:
unless (1i) the Company or the applicable Restricted 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 Fair Market Value of the assets sold or otherwise disposed of (as determined in good faith by the Company’s good-faith judgment of the Board of Directors);
, which determination, in each case where such fair market value is greater than $5.0 million, shall be evidenced by a Board Resolution and (2ii) at least 75% of the consideration received by for such sale or other disposition consists of cash or cash equivalents or the assumption of unsubordinated Indebtedness. The Company shall, or shall cause the relevant Restricted Subsidiary to, within 360 days after the date of receipt of the Net Cash Proceeds from an Asset Sale, (i) (A) apply an amount equal to such Net Cash Proceeds to permanently repay unsubordinated Indebtedness of the Company or the Indebtedness of any Restricted Subsidiary, as the in each case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents and shall be received at the time of such disposition; provided that, for purposes of this clause (2) any securities, notes or owing to a Person other obligations received by than the Company or any such of its Restricted Subsidiary from such transferee Subsidiaries or (B) invest an equal amount, or the amount not so applied pursuant to clause (A) in long-term property or assets of a nature or type or that are converted by the Company used in a business (or such Restricted Subsidiary into cash in a company having property and assets of a nature or Cash Equivalents (type, or engaged in a business) similar or related to the extent nature or type of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall applyproperty and assets of, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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 of, the Company and its Restricted Subsidiaries as existing on the Issue Date or date of such investment (as determined in businesses reasonably related thereto (“Replacement Assets”); or
(c) a combination of prepayment and investment permitted good faith by the foregoing clauses (3)(aBoard of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) and (3)(b).
ii) apply (b) On no later than the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors end of the Company or of 360-day period referred to above) such Restricted Subsidiary determines not to apply the excess Net Cash Proceeds relating (to the extent not applied pursuant to clause (i)) as provided in the following paragraphs of this Section 1017. The amount of such Asset Sale Net Cash Proceeds required to be applied (or to be committed to be applied) during such 360-day period in the manner as set forth in clauses clause (3)(a), (3)(b) and (3)(ci) of Section 4.10(a) (eachthe preceding sentence and not applied as so required by the end of such period shall constitute "Excess Proceeds." If, a “Net Proceeds Offer Trigger Date”)as of the first day of any calendar month, such the aggregate amount of Net Cash Excess Proceeds that have not been applied on or before such Net theretofore subject to an Excess Proceeds Offer Trigger Date (as permitted in clauses (3)(a)defined below) totals at least $10.0 million, the Company must, not later than the 30th Business Day thereafter, (3)(bi) and (3)(c) of Section 4.10(a) or the last proviso of this paragraph (each, a “Net use such Excess Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase the 11-3/4% Senior Notes due 2004 of the Company in accordance with the terms of such Indebtedness which require such a purchase offer and do not provide for proration of the amount of such Indebtedness to be purchased with such Exceeds Proceeds (the “Net Proceeds "1997 Senior Notes Offer”") to all Holders and, and (ii) to the extent required by Excess Proceeds remain after such offer is consummated, make an offer (an "Excess Proceeds Offer") to purchase from 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum basis an aggregate principal amount of Notes and Pari Passu Indebtedness that may be purchased with equal to the Net Proportionate Share of the Excess Proceeds Offer Amount on such date remaining after application pursuant to the 1997 Senior Notes Offer, at a purchase price equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchasedNotes, plus plus, in each case, 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 purchase (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"Excess Proceeds Payment"), 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. The Company may defer the Net shall commence an Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 by mailing 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections notice to the extent thatTrustee and each Holder stating:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Excess Proceeds Offer is being made pursuant to this Section 4.10 1017 and that (subject to the provisions hereof) all Notes validly tendered will be accepted for paymentpayment on a pro rata basis;
(2ii) the purchase price (including the amount of accrued interest) and the date of purchase date (which shall be a Business Day no earlier than 30 days nor later than 60 days from the Net date such notice is mailed) (the "Excess Proceeds Offer Payment Date");
(3iii) that any Note not tendered will continue to accrue interest if interest is then accruingpursuant to its terms;
(4iv) that, unless the Company defaults in making the payment thereforof the Excess Proceeds Payment, any Note accepted for payment pursuant to the Net Excess Proceeds Offer shall cease to accrue interest on and after the Net Excess Proceeds Offer Payment Date;
(5v) that Holders electing to have a Note purchased pursuant to a Net the Excess Proceeds Offer will be required to surrender the Note, together with the form entitled “"Option of the Holder to Elect Purchase” " on the reverse side 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 Business Day immediately preceding the Net Excess Proceeds Offer Payment Date;
(6vi) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, the close of business on the second third Business Day immediately preceding the Net Excess Proceeds Offer Payment Date, a telegram, facsimile transmission or letter setting forth the name of the such Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note Notes purchased; and
(7vii) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice unpurchased portion of the Net Proceeds Offer, Holders may elect to tender their Notes surrendered; provided that each Note purchased and each new Note -------- issued shall be in whole a principal amount of $1,000 or in part in integral multiples of $1000 in exchange for cashthereof. To On the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Excess Proceeds Offer AmountPayment Date, the tendered Notes and Pari Passu Indebredness will be purchased Company shall
(i) accept for payment on a pro rata basis Notes or portions thereof tendered pursuant to the Excess Proceeds Offer up to the Proportionate Share of such Excess Proceeds remaining after application pursuant to the 1997 Senior Notes Offer;
(based on amounts tenderedii) deposit with the Paying Agent money sufficient to pay the purchase price of all Notes or portions thereof so accepted; and
(iii) deliver, or cause to be delivered, to the Trustee all Notes or portions thereof so accepted together with an Officer's Certificate specifying the Notes or portions thereof accepted for payment by the Company. The Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer purchase price, and the Trustee shall remain open for upon Company Order, promptly authenticate and mail to such Holders a period new Note equal in principal amount to any unpurchased portion of 20 business days the Note surrendered; provided that each Note purchased and each new Note issued -------- shall be in a principal amount of $1,000 or such longer period as may be required by lawintegral multiples thereof. The Company will publicly announce the results of the Excess Proceeds Offer as soon as practicable after the Excess Proceeds Payment Date. For purposes of this Section 1017, the Trustee shall act as the Paying Agent. The Company will comply with the requirements of Rule 14e-1 l4e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable applicable, in connection the event that such Excess Proceeds are received by the Company under this Section 1017 and the Company is required to repurchase Notes as described above. SECTION 1018. Limitation on Issuances of Guarantees of Indebtedness ----------------------------------------------------- by Restricted Subsidiaries. -------------------------- The Company will not permit any Restricted Subsidiary, directly or indirectly, to guarantee, assume or in any other manner become liable with respect to any Indebtedness of the repurchase Company, other than Indebtedness under Credit Facilities incurred under clauses (i) and (ii) of Section 1011, unless (i) such Restricted Subsidiary simultaneously executes and delivers a supplemental indenture to the Indenture providing for a Guarantee of the Notes pursuant on terms substantially similar to the guarantee of such Indebtedness, except that if such Indebtedness is by its express terms subordinated in right of payment to the Notes, any such assumption, Guarantee or other liability of such Restricted Subsidiary with respect to such Indebtedness shall be subordinated in right of payment to such Restricted Subsidiary's assumption, Guarantee of other liability with respect to the Notes substantially to the same extent as such Indebtedness is subordinated to the Notes and (ii) such Restricted Subsidiary waives, and will not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against the Company or any other Restricted Subsidiary as a Net Proceeds Offer. To the extent that the provisions result of any securities laws payment by such Restricted Subsidiary under its Guarantee. Notwithstanding the foregoing, any Guarantee by a Restricted Subsidiary may provide by its terms that it will be automatically and unconditionally released and discharged upon (i) any sale, exchange or regulations conflict with thistransfer, to any Person not an Affiliate of the Company, of all of the Company's and each Restricted Subsidiary's Capital Stock in, or all or substantially all of the assets of, such Restricted Subsidiary (which sale, exchange or transfer is not prohibited by the Indenture) or (ii) the release or discharge of the guarantee which resulted in the creation of such Guarantee, except a discharge or release by or as a result of payment under such guarantee.
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:
unless (1i) 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 's Board of Directors);
, (2ii) 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 or Cash Equivalents and shall be is received at the time of such disposition; provided thatPROVIDED that the amount of (x) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), for purposes of this clause the Company or any Restricted Subsidiary (2other than liabilities that are by their terms subordinated to the Notes or, in the case of liabilities of a Restricted Subsidiary, any Note Guarantee of such Subsidiary) that are assumed by the transferee of any such assets and (y) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 180 days after receipt will receipt, shall be considered “cash” deemed to be cash for purposes of this clause (ii); PROVIDED, FURTHER, HOWEVER, that this clause (ii) shall not apply to any sale of Capital Stock of or “Cash Equivalents”; and
other Investments in Unrestricted Subsidiaries and (3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 360 days of receipt thereof either:
either (aA) to permanently reduce Indebtedness under the Credit Agreement prepay (and, in the case of any such Indebtedness under any revolving credit facility, including the New Credit Facility, effect a permanent reduction in the availability under such revolving credit facility;
) any Indebtedness, (bB) 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”"); or
, or (cC) a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) . On the 366th 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)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) the next preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of such Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, 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 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata PRO RATA basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with issued under this Indenture equal to 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; providedPROVIDED, howeverHOWEVER, 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 or dividends 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 4.104.15. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Pro- ceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)paragraph). In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, which transaction does not constitute a Change of Control, the successor corporation Person shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 4.15, and shall comply with the provisions of this Section 4.10 4.15 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) 4.15. Notwithstanding Sections 4.10(a) and (b)the two immediately preceding paragraphs, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections paragraphs to the extent that:
(1i) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
Assets and (2ii) such Asset Sale is for fair market value; provided PROVIDED that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) paragraph shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03two preceding paragraphs. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The Upon receiving notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. Such notice To the extent Holders properly tender Notes in an amount exceeding the Net Proceeds Offer Amount, Notes of tendering Holders will be purchased on a PRO RATA basis (based on amounts tendered). A Net Proceeds Offer shall remain open for a period of 20 Business Days or such longer period as may be required by law. The notice, which shall govern the terms of the Net Proceeds Offer, shall include such disclosures as are required by applicable law and shall state:
(1i) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment4.15;
(2ii) the purchase price (including the amount of accrued interest, if any) and the purchase date (which shall to be paid for Notes purchased pursuant to the Net Proceeds Offer and the Net Proceeds Payment Date);
(3iii) that any Note not tendered for payment will continue to accrue interest if interest is then accruingin accordance with the terms thereof;
(4iv) that, unless the Company defaults in on making payment thereforthe payment, any Note accepted for payment pursuant to the Net Proceeds Offer shall cease to accrue interest after the Net Proceeds Offer Payment Date;
(5v) that Holders electing accepting the Net Proceeds Offer to have a Note their Notes purchased pursuant to a the Net Proceeds Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, their Notes 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 Net Proceeds Offer Payment Date;
(6vi) that Holders will be entitled to withdraw their election acceptance if the Paying Agent receives, not later than 5:00 p.m., New York City time, the close of business on the second Business Day preceding prior to the Net Proceeds Offer Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Notes purchased;
(vii) that Holders whose Notes are purchased only in part will be issued new Notes in a principal amount equal to the unpurchased portion of the Notes surrendered; PROVIDED that each Note purchasedpurchased and each such new Note issued shall be in an original principal amount in denominations of $1,000 and integral multiples thereof;
(viii) any other procedures that a Holder must follow to accept a Net Proceeds Offer or effect withdrawal of such acceptance; and
(7ix) the circumstances name and relevant facts regarding such address of the Paying Agent. On the Net Proceeds OfferPayment Date, the Company shall (i) accept for payment Notes or portions thereof tendered pursuant to the Net Proceeds Offer in accordance with this Section 4.15, (ii) deposit timely 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 in accordance with this Section 4.15 and (iii) deliver to the Trustee Notes so accepted together with an Officers' Certificate stating the Notes or portions thereof tendered to and accepted for payment by the Company. Upon receiving For purposes of this Section 4.15, the Trustee shall act as the Paying Agent. The Paying Agent shall promptly mail or deliver to the Holders of Notes so accepted payment in an amount equal to the purchase price for such Notes, and the Company shall execute and issue, and the Trustee shall promptly authenticate and mail to such Holders, a new Note equal in principal amount to any unpurchased portion of the Note surrendered; PROVIDED that each such new Note shall be issued in an original principal amount in denominations of $1,000 and integral multiples thereof. The Company will send to the Trustee and the Holders of Notes on or as soon as practicable after the Net Proceeds Payment Date a notice setting forth the results of the Net Proceeds Offer, Holders may elect to tender their . Any Notes in whole not so accepted shall be promptly mailed or in part in integral multiples of $1000 in exchange for cash. To delivered by the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal Company to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by lawHolder thereof. The Company shall 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 thisthe "Asset Sale" provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.15 by virtue thereof.
Appears in 1 contract
Sources: Indenture (Power Ten)
Limitation on Asset Sales. (a) The Neither the Company shall not, and shall not permit nor any of its Restricted Subsidiaries to, will consummate an Asset Sale unless:
unless (1i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of 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 management of the Company or, if such Asset Sale involves consideration in excess of $2,500,000, by the Board of Directors of the Company’s Board of Directors, as evidenced by a board resolution);
, (2ii) 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 is cash or Cash Equivalents (other than in the form case where the Company is exchanging all or substantially all the assets of one or more broadcast businesses operated by the Company (including by way of the transfer of the capital stock) for all or substantially all the assets (including by way of the transfer of the capital stock) constituting one or more broadcast businesses operated by another Person, in which event the foregoing requirement with respect to the receipt of cash or Cash Equivalents shall not apply) and shall be is received at the time of such disposition; provided that, for purposes of this clause disposition and (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3iii) upon the consummation of an Asset Sale, the Company shall apply, applies or cause causes such Restricted Subsidiary to apply, the such Net Cash Proceeds relating to such Asset Sale within 365 180 days of receipt thereof either:
thereof, either (aA) to permanently reduce Indebtedness under repay the Credit Agreement and, in the case principal of any such Senior Indebtedness under any 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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 Indebtednesssuch Senior Indebtedness relates to principal under a revolving credit or similar facility, to all holders obtain a corresponding reduction in the commitments thereunder), (B) to reinvest, or to be contractually committed to reinvest pursuant to a binding agreement, in Productive Assets and, in the latter case, to have so reinvested within 360 days of the date of receipt of such Pari Passu IndebtednessNet Cash Proceeds, on a date or (C) to purchase Securities tendered to 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 such Pari Passu Indebtedness) (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 Company for purchase at a price equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchasedthereof, plus accrued and unpaid interest thereon, if any, thereon to the date of purchase, pursuant to an offer to purchase made by the Company as set forth below (a "Net Proceeds Offer"); provided, however, that, prior to making any such -------- ------- Net Proceeds Offer the Company may, to the extent required pursuant to the Note Indenture and the Existing Indenture, in each case, as in effect on the Issue Date, offer to use such Net Cash Proceeds to repurchase and use all or a portion of such Net Cash Proceeds to repurchase Notes and/or Existing Notes and any other Senior Debt of the Company incurred after the Issue Date containing a provision similar to this Section 4.15, in which event the Company shall be required to use only the Net Cash Proceeds remaining after such other repurchases to make the Net Proceeds Offer contemplated by this Section 4.15; provided, further, 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 4.10. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thismay
Appears in 1 contract
Limitation on Asset Sales. (a) The Company Issuer shall not, and shall not permit any Restricted Subsidiary to, sell, assign, convey, transfer or otherwise dispose of a Mortgaged Rig or any other portion of the Collateral (other than an Incidental Asset or Temporary Cash Investments in the Reserve Account and other than a transfer of a Mortgaged Rig to a Wholly Owned Restricted Subsidiary that becomes a Subsidiary Guarantor); PROVIDED, HOWEVER, that the Issuer or a Restricted Subsidiary may sell a Mortgaged Rig or the Issuer may sell all the Capital Stock of a Restricted Subsidiary owning a Mortgaged Rig (any such asset proposed to be sold is referred to herein as a "Mortgaged Rig Asset") if such sale of a Mortgaged Rig Asset shall be made in compliance with each of the following conditions:
(i) no Default shall have occurred and be continuing;
(ii) the sale shall be effected in a commercially reasonable manner as determined by the Board of Directors and evidenced by a Board Resolution;
(iii) the entire consideration for such sale shall be at least equal to the fair market value of the Mortgaged Rig Asset (as determined in good faith by the Issuer's Board of Directors);
(iv) at least 85% of the consideration received shall be in the form of cash or Temporary Cash Equivalents; and
(v) the Issuer shall have complied with the other provisions of this Indenture applicable to such sale, including Section 3.09.
(b) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an engage in any Asset Sale unless:
Sales (1other than Asset Sales permitted by Section 4.15(a) and foreclosures, deeds-in-lieu of foreclosure or similar transactions) unless (i) the Company Issuer 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 Issuer's Board of Directors);
, and (2ii) at least 7585% of the consideration received by the Company Issuer or the Restricted Subsidiary, as the case may be, from such Asset Sale at the time of such disposition shall be in the form of cash or Temporary Cash Equivalents and Equivalents. If the Issuer or a Restricted Subsidiary engages in an Asset Sale in compliance with the previous sentence or a foreclosure, deed-in-lieu of foreclosure or similar transaction, then the Issuer shall be received at or shall cause a Restricted Subsidiary to apply an amount equal to such excess Net Available Cash within 360 days of the time Asset Sale either (i) to repay Senior Indebtedness of the Issuer or of a Restricted Subsidiary (other than in each case Indebtedness owed to an Affiliate of the Issuer), (ii) to invest in Additional Assets or (iii) pay (no later than the end of such disposition; provided that, for purposes of this clause (2360-day period) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or excess Net Available Cash Equivalents (to the extent of not applied pursuant to clauses (i) or (ii) above) directly to the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement and, Trustee for deposit in the case of any such Indebtedness under any 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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (each, a “Net Proceeds Offer Trigger Date”), such aggregate amount Reserve Account. Pending application of Net Available Cash Proceeds that 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 Section 4.10(a) or the last proviso of this 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 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 such Pari Passu Indebtedness) (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 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 4.10. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 5.01Section, which transaction does not constitute a Change of Control, the successor corporation such Net Available Cash shall be deemed invested in Permitted Investments or to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10temporarily reduce Indebtedness.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this
Appears in 1 contract
Sources: Indenture (Pride International Inc)
Limitation on Asset Sales. (aA) 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 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 DirectorsDirectors of the Company);
(2) at least 75% of the consideration received by the Company or the its Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents and shall be received at the time of such disposition; provided thatprovided, for purposes however, that the amount of this clause (2a) any securitiesliabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee in such Asset Sale and from which the Company or such Restricted Subsidiary is released and (b) any notes, notes securities or other obligations received by the Company or by any such Restricted Subsidiary from such transferee that are immediately converted by the Company or by such Restricted Subsidiary into cash or Cash Equivalents (shall be deemed to the extent be cash for purposes of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”this provision; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 360 days of receipt thereof either:
(a) to permanently reduce pay (i) Indebtedness under the Credit Agreement (and, in the case of any such Indebtedness under any revolving credit facility, effect a corresponding permanent reduction in the availability under such revolving credit facility;) or other Indebtedness ranking pari passu with the Notes or Guarantees and (ii) in the case of an Asset Sale by a Restricted Subsidiary that is not a Guarantor, Indebtedness of such Restricted Subsidiary; provided, however, that if the Company repays such other pari passu Indebtedness it must make an equal and ratable Offer to all holders of Notes as provided in the following paragraph,
(b) to make an investment 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”"); or, and/or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 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 such Pari Passu Indebtedness) (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 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 4.10. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this
Appears in 1 contract
Limitation on Asset Sales. (aA) The Company shall Holdings will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company Holdings 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)of;
(2) at least 75% of the consideration received by the Company Holdings or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents and shall be is received at the time of such disposition; provided thatPROVIDED that (a) the amount of any Indebtedness or other liabilities of Holdings or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Notes or any Guarantee thereof) that are assumed by the transferee of any such assets and (b) the fair market value of any marketable securities, for purposes of this clause (2) any securitiescurrencies, notes or other obligations received by the Company Holdings or any such Restricted Subsidiary from in exchange for any such transferee assets that are promptly converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days after the consummation of such Asset Sale (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will shall be considered “cash” or “Cash Equivalents”deemed to be cash for purposes of this provision; and
(3) upon the consummation of an Asset Sale, the Company shall Holdings shall, subject to paragraph (B) below, apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 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 such Pari Passu Indebtedness) (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 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 4.10. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with this
Appears in 1 contract
Sources: Indenture (Aas Capital Corp)
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (1i) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of (in each case as determined in good faith by the Company’s 's Board of Directors);
; (2ii) 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 or Cash Equivalents (provided that (A) the amount of 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 (other than liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets and (B) the fair market value of any marketable securities received by the Company or a Restricted Subsidiary in exchange for any such assets that are promptly converted into cash shall be deemed to be cash for the purposes of this provision) and is received at the time of such disposition; provided that, for purposes of this clause (2) any securities, notes or other obligations received by that the Company or any such and its Restricted Subsidiary from such transferee that are converted by Subsidiaries may make Asset Sales not exceeding $2 million in the Company or such Restricted Subsidiary into aggregate in each year for non-cash or Cash Equivalents consideration; and (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 360 days of receipt thereof either:
either (aA) to permanently reduce Indebtedness under the Credit Agreement prepay any Senior Debt and, in the case of any such Indebtedness Senior Debt under any revolving credit facility, facility effect a permanent reduction in the availability under such revolving credit facility;
, or to so prepay any Indebtedness of a Wholly Owned Restricted Subsidiary, (bB) 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 it exists on the Issue Date date of such Asset Sale or in businesses the same, similar or reasonably related thereto (“"Replacement Assets”"); or
, or (cC) a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) On . Subject to the 366th last sentence of this paragraph, 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 clause (3)(aiii)(A), (3)(biii)(B) and or (3)(ciii)(C) of Section 4.10(a) the next preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, 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 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to 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 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 4.10covenant. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 10 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 10 million, shall be applied as required pursuant to this Section 4.10(b)paragraph). In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01, which transaction does not constitute a Change of Control, the successor corporation Person shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 covenant, and shall comply with the provisions of this Section 4.10 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 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.034.16. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the TrusteeTrustee and each Paying Agent, and shall comply with the procedures set forth in this Indenture. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. To the extent Holders properly tender Notes in an amount exceeding the Net Proceeds Offer Amount, Notes of tendering Holders will be purchased on a pro rata basis (based on amounts tendered). To the extent that the aggregate amount of Notes 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 Indenture. Upon completion of any such Net Proceeds 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 law. Notwithstanding the foregoing, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Swap if (i) at the time of entering into such Asset Swap or immediately after giving effect to such Asset Swap, no Default or Event of Default shall have occurred or be continuing or would occur as a consequence thereof, (ii) in the event that such Asset Swap involves an aggregate amount in excess of $10 million, the terms of such Asset Swap have been approved by a majority of the members of the Board of Directors of the Company, and (iii) in the event such Asset Swap involves an aggregate amount in excess of $50 million, the Company has received a written opinion from an Independent Financial Advisor that such Asset Swap is fair to the Company or such Restricted Subsidiary, as the case may be, from a financial point of view.
(b) Subject to the deferral of the Net Proceeds Offer Trigger Date contained in the second paragraph of subsection (a) above, each notice of a Net Proceeds Offer pursuant to this Section 4.16 shall be mailed or caused to be mailed, by first class mail, by the Company not more than 25 days after the Net Proceeds Offer Trigger Date to all Holders at their last registered addresses as of a date within 15 days of the mailing of such notice, with a copy to the Trustee and each Paying Agent. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice Offer and shall statestate the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 4.16 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment; provided, however, that if the aggregate principal amount of Notes tendered in a Net Proceeds Offer exceeds the aggregate amount of the Net Proceeds Offer, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 or multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be 20 Business Days from the date of mailing of notice of such Net Proceeds Offer Payment Offer, or such longer period as required by law) (the "Proceeds Purchase Date");
(3) that any Note not tendered will continue to accrue interest if interest is then accruinginterest;
(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 Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to a Net Proceeds Offer will be required to surrender the Note, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third business day Business Day prior to the Net Proceeds Offer Payment Purchase Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on five Business Days prior to the second Business Day preceding the Net Proceeds Offer 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 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 circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice unpurchased portion of the Net Proceeds Offer, Holders may elect to tender their Notes surrendered; provided that each Note purchased and each new Note issued shall be in whole an original principal amount of $1,000 or in part in integral multiples of $1000 in exchange for cash. To thereof; On or before the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer AmountPurchase Date, the Company shall (i) accept for payment Notes or portions thereof tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal pursuant to the Net Proceeds Offer Amount which are to be purchased in accordance with item (b)(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 Paying Agent Notes so accepted together with an Officers' Certificate stating the Notes or portions thereof being purchased by the Company. A The Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an amount equal to the purchase price plus accrued interest, if any. Any amounts remaining after the purchase of Notes pursuant to a Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required returned by lawthe Trustee to the Company. 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis Section 4.16, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.16 by virtue thereof.
Appears in 1 contract
Sources: Indenture (Del Monte Foods Co)
Limitation on Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an make any Asset Sale unless:
unless (1i) the Company or the applicable Restricted such Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (determined by the Board of Directors in good faith, which determination shall be evidenced by a board resolution) of the assets or other property sold or otherwise disposed of in the Asset Sale, and (as determined in good faith by the Company’s Board of Directors);
(2ii) at least 75% of the such consideration received by the Company or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents and shall be received at the time of such dispositionEquivalents; provided that, that for purposes of this clause covenant "cash" shall include the amount of any liabilities (2other than liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) of the Company or such Subsidiary (as shown on the Company's or such Subsidiary's most recent balance sheet or in the notes thereto) that are assumed by the transferee of any securities, notes such assets or other obligations received by property in such Asset Sale (and excluding any liabilities that are incurred in connection with or in anticipation of such Asset Sale), but only to the extent that such assumption is effected on a basis under which there is no further recourse to the Company or any of its Subsidiaries with respect to such Restricted Subsidiary from such transferee that are converted by the Company liabilities. Notwithstanding clause (ii) above, (a) all or such Restricted Subsidiary into cash or Cash Equivalents (to the extent a portion of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to consideration for any such Asset Sale within 365 days may consist of receipt thereof either:
all or substantially all of the assets or a majority of the Voting Stock of an existing television business, franchise or station (awhether existing as a separate entity, subsidiary, division, unit or otherwise) or any business directly related thereto, (b) Asset Sales involving assets which are not television or publishing businesses, franchises or stations and having an aggregate value (as measured by the value of the consideration being paid for such assets) not in excess of $40,000,000 may be made without regard to permanently reduce Indebtedness under clause (ii) above, and (c) the Credit Agreement andCompany may, and may permit its Subsidiaries to, issue shares of Capital Stock in a Qualified Joint Venture to a Qualified Joint Venture Partner without regard to clause (ii) above; provided, that, in the case of any of (a), (b) or (c) of this sentence, after giving effect to any such Indebtedness under Asset Sale and related acquisition of assets or Voting Stock, (x) no Default or Event of Default shall have occurred or be continuing; and (y) the Net Proceeds of any revolving credit facilitysuch Asset Sale, effect a permanent reduction if any, are applied in the availability under such revolving credit facility;accordance with this covenant.
(b) Within 360 days after any Asset Sale, the Company may elect to apply or cause to be applied the Net Proceeds from such Asset Sale to (i) permanently reduce any Senior Debt of the Company or any Guarantor Senior Debt, and/or (ii) make an investment in properties and in, or acquire 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 directly related to the business of the Company and its Restricted Subsidiaries as existing on the Issue Date Date. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Senior Debt of the Company or any Guarantor Senior Debt or temporarily invest such Net Proceeds in businesses reasonably related thereto (“Replacement Assets”); orany manner permitted by this Indenture. Any Net Proceeds from an Asset Sale not applied or invested as provided in the first sentence of this paragraph within 360 days of such Asset Sale will be deemed to constitute "Excess Proceeds" on the 361st day after such Asset Sale.
(c) a combination of prepayment and investment permitted by the foregoing clauses As soon as practical, but in no event later than 10 Business Days after any date (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (each, a “Net Proceeds Offer Trigger Date”), such ") that the aggregate amount of Net Cash Excess Proceeds that have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(a)exceeds $5,000,000, (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this paragraph (each, a “Net Proceeds Offer Amount”) shall be applied by the Company or such Restricted Subsidiary to make shall commence an offer to purchase (the “Net Proceeds Offer”) to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum principal amount of Notes and Pari Passu Indebtedness that may be purchased with the Net out of all such Excess Proceeds Offer Amount (an "Asset Sale Offer") at a price in cash equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchasedthereof, plus accrued and unpaid interest thereon, if any, to the date of purchase; providedpurchase (the "Asset Sale Offer Purchase Date"). To the extent that any Excess Proceeds remain after completion of an Asset Sale Offer, however, that if at any time any non-cash consideration received by the Company or any Restricted Subsidiary of may use the Company, as the case may be, in connection with remaining amount for general corporate purposes and such amount shall no longer constitute "Excess Proceeds."
(d) Within 30 days following 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. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion TransactionTrigger Date, the Company shall apply mail to S&P each holder of Notes at such holder's registered address a notice stating: (i) that an Asset Sale Offer Trigger Date has occurred and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, that the Company is able offering to incur purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds at least $1.00 an offer price in cash equal to 100% of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed the principal amount thereof, plus accrued and unpaid interest to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Asset Sale Offer Trigger Purchase Date, with which shall be a copy to Business Day, specified in such notice, that is not earlier than 30 days or later than 60 days from the Trusteedate such notice is mailed, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1ii) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and unpaid interest as of the purchase date Asset Sale Offer Purchase Date, (which shall be the Net Proceeds Offer Payment Date);
(3iii) that any Note not tendered will continue to accrue interest if interest is then accruing;
interest, (4iv) that, unless the Company defaults in making the payment thereforof the purchase price for the Notes payable pursuant to the Asset Sale Offer, any Note Notes accepted for payment pursuant to the Net Proceeds Asset Sale Offer shall cease to accrue interest after the Net Proceeds Asset Sale Offer Payment Purchase Date;
, (5v) that Holders electing to have a tender any Note purchased pursuant to a Net Proceeds Offer or portion thereof will be required to surrender the their Note, with the a 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 Business Day preceding the Asset Sale Offer Purchase Date; provided that Holders electing to the Net Proceeds Offer Payment Date;
tender only a portion of any Note must tender a principal amount of $1,000 or integral multiples thereof; (6vi) that Holders will be entitled to withdraw their election to tender Notes if the Paying Agent receives, not later than 5:00 p.m., New York City time, the close of business on the second third Business Day preceding the Net Proceeds Asset Sale Offer 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 purchase, and a statement that such Holder is withdrawing his election to have such Note Notes purchased; andand (vii) that Holders whose Notes are accepted for payment in part will be issued new Notes equal in principal amount to the unpurchased portion of Notes surrendered; provided that only Notes in a principal amount of $1,000 or integral multiples thereof will be accepted for payment in part.
(7e) On the circumstances Asset Sale Offer Purchase Date, the Company will (i) accept for payment the maximum principal amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer that can be purchased out of Excess Proceeds from such Asset Sale, (ii) deposit with the Paying Agent the aggregate purchase price of all Notes or portions thereof accepted for payment and relevant facts regarding any accrued and unpaid interest on such Net Proceeds Notes as of the Asset Sale Offer Purchase Date, and (iii) deliver or cause to be delivered to the Trustee all Notes tendered pursuant to the Asset Sale Offer. Upon receiving notice If less than all Notes tendered pursuant to the Asset Sale Offer are to be purchased by the Company, the Trustee, on behalf of the Net Proceeds OfferCompany, Holders may elect shall select the outstanding Notes to tender their be purchased by the Company in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not listed on such an exchange, the Trustee on behalf of the Company, shall select the outstanding Notes to be purchased, on a pro rata basis, by lot or by such method as the Trustee deems fair and appropriate; provided that Notes purchased in part shall only be purchased in integral multiples of $1,000. The Company shall notify the Trustee of its acceptance for payment of Notes selected for purchase. The Paying Agent shall promptly mail to each holder of Notes or portions thereof accepted for payment an amount equal to the purchase price for such Notes plus any accrued and unpaid interest thereon, and the Trustee shall promptly authenticate and mail to such Holder of Notes accepted for payment in part a new Note equal in principal amount to any unpurchased portion of the Notes, and any Note not accepted for payment in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will shall be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal promptly returned to the Net Proceeds Holder of such Note. On and after an Asset Sale Offer Amount (if any). A Net Proceeds Offer shall remain open Purchase Date, interest will cease to accrue on the Notes or portions thereof accepted for a period payment, unless the Company defaults in the payment of 20 business days or such longer period as may be required by lawthe purchase price therefor. The Company shall will announce the results of the Asset Sale Offer to Holders on or as soon as practicable after the Asset Sale Offer Purchase Date.
(f) The Company will comply with the applicable tender offer rules, including the requirements of Rule 14e-1 under the Exchange Act Act, and any all other applicable 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 any Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with this.
Appears in 1 contract
Limitation on Asset Sales. (a) The Company shall will not, and shall will not cause or permit any of its Restricted Subsidiaries to, consummate cause, make or suffer to exist an Asset Sale unless:
Sale, unless (1x) the Company or the applicable its 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);
the assets sold or otherwise disposed of and (2y) at least 75% of the consideration therefor received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of cash or Cash Equivalents and shall be received at the time of such dispositionEquivalents; provided that, for purposes that the amount of this clause (2a) any securitiesliabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Securities) that are assumed by the transferee of any such assets without recourse to the Company or any of the Restricted Subsidiaries, (b) any notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 180 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon following the consummation closing of an such 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 either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 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 such Pari Passu Indebtedness) (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 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 4.10. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in connection such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed 15% of Total 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), and (d) any assets received in exchange for assets related to a Similar Business of comparable market value, in the good faith determination of, the Board of Directors of the Company, shall be deemed to be cash for purposes of this provision. Within 365 days after the Company's or any Restricted Subsidiary's receipt of the Net Proceeds of any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Sale, the Company or such Restricted Subsidiary may apply the Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that from such Asset Sale, at its option, (i) to permanently reduce Obligations under the Supplemental Indenture is executed New Credit Facility (and in effect concurrently to correspondingly reduce commitments with respect thereto) or other Senior Indebtedness or Pari Passu Indebtedness (provided that if the consummation Company shall so reduce Obligations under Pari Passu Indebtedness, it will equally and ratably reduce Obligations under the Securities if the Securities are then redeemable or, if the Securities may not be then redeemed, the Issuers shall make an Offer to Purchase to all Holders to purchase at 100% of such Inversion Transaction; the principal amount thereof the amount of Securities that would otherwise be redeemed) or Indebtedness of a Restricted Subsidiary, (ii) immediately following to an investment in any one or more businesses, capital expenditures or acquisitions of other assets in each case, used or useful in a Similar Business and/or (iii) to make an investment in properties or assets that replace the properties and assets that are the subject of such Inversion TransactionAsset Sale. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a revolving credit facility, if any, or otherwise invest such Net Proceeds in Cash Equivalents or Investment Grade Securities. Any Net Proceeds from the Asset Sale that are not invested as provided and within the time period set forth in the first sentence of this paragraph (it being understood that any portion of such Net Proceeds used to make an offer to purchase Securities, as described in clause (i) above, shall apply to S&P and ▇▇▇▇▇’▇ be deemed to have its debt rating been invested whether or not such offer is accepted) will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $15.0 million, the Issuers shall make an Offer to Purchase to all Holders of Securities to purchase the maximum principal amount of Securities that is an integral multiple of $1,000 that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and outlook updated and such updated debt rating and outlook shall be no less favorable unpaid interest, if any, to the Company than immediately prior to date fixed for the closing of such Inversion Transaction; (iii) immediately following such Inversion Transactionoffer, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply accordance with the procedures set forth in this Indenturebelow. The notice Issuers will commence an Offer to the Holders shall contain all instructions and materials necessary Purchase with respect to enable such Holders to tender Notes pursuant to the Net Excess Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 within ten Business Days after the Net Proceeds Offer Payment Date;
(5) date that Holders electing to have a Note purchased pursuant to a Net Proceeds Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of Excess Proceed exceeds $1000 in exchange for cash15.0 million. To the extent Holders properly tender Notes and holders that the aggregate amount of Pari Passu Indebtedness properly tender Securities tendered pursuant to such Pari Passu Indebtedness in an amount exceeding Offer to Purchase is less than the Net Proceeds Offer AmountExcess Proceeds, the tendered Notes and Pari Passu Indebredness will Company may use any remaining Excess Proceeds for general corporate or partnership purposes. Upon completion of any such Offer to Purchase, the amount of Excess Proceeds shall be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by lawreset at zero. The Company shall Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and or regulations are applicable in connection with the repurchase of Notes the Securities pursuant to a Net Proceeds Offersuch an Offer to Purchase. To the extent that the provisions of any securities laws or regulations conflict with thisthe 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. On or prior to the Purchase Date specified in the Offer to Purchase, the Issuers shall (i) accept for payment all Securities validly tendered pursuant to the Offer, (ii) deposit with the Paying Agent or, if an Issuer is acting as its own Paying Agent, segregate and hold in trust as provided in Section 2.04, money sufficient to pay the Purchase Price of all Securities or portions thereof so accepted and (iii) deliver or cause to be delivered to the Trustee for cancellation all Securities so accepted together with an Officers' Certificate stating the Securities or portions thereof accepted for payment by the Issuers. The Paying Agent (or an Issuer, if so acting) shall promptly mail or deliver to Holders of Securities so accepted, payment in an amount equal to the Purchase Price for such Securities, and the Trustee shall promptly authenticate and mail or deliver to each Holder of Securities a new Security or Securities equal in principal amount to any unpurchased portion of the Security surrendered as requested by the Holder. Any Security not accepted for payment shall be promptly mailed or delivered by the Issuers to the Holder thereof. The Issuers shall publicly announce the results of the Offer on or as soon as practicable after the Purchase Date.
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 the applicable Restricted Subsidiary, as the case may be, Subsidiary receives consideration at the time of such Asset Sale at least equal to the fair market value Fair Market Value of the assets sold or otherwise disposed of (as determined deter-mined in good faith by the Company’s 's Board of Directors);
(2ii) at least 75% of the consideration received by the Company or the applicable Restricted Subsidiary, as the case may be, Subsidiary from such Asset Sale shall be in the form of cash or Cash Equivalents Equivalents, and shall be is received at the time of the Asset Sale (which shall be deemed to include other consideration converted to cash or Cash Equivalents within 90 days of such disposition; provided thatAsset Sale). For the purposes of this provision, the amount of any liabilities shown on the most recent applicable balance sheet of the Company or the applicable Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes, that are assumed by the transferee of any such assets will be deemed to be cash for purposes of this clause (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”provision; and
(3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such applicable Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 415 days of receipt thereof either:having received the Net Cash Proceeds.
(ab) Additionally, the Company may only apply the Net Cash Proceeds either (i) to permanently reduce prepay any Designated Senior Debt or Indebtedness under of a Restricted Subsidiary of the Credit Agreement Company that is not a Guarantor 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;
, and/or (bii) to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale or in expenditures for properties and assets (including Capital StockStock of any entity) that will be used in the business a Permitted Business ("Replacement Assets") and/or (iv) make an acquisition of (A) assets of any Person or division or (B) Capital Stock of a Person that as a result of such acquisition becomes a Restricted Subsidiary of the Company and its Restricted Subsidiaries as existing on the Issue Date or Company, in businesses reasonably related thereto either case, conducting a Permitted Business (“Replacement Assets”"RelatedBusinesses"); or.
(c) a combination Pending the final application of prepayment and investment permitted any such Net Cash Proceeds, the Company or any Restricted Subsidiary of the Company may temporarily reduce revolving credit borrowings or otherwise invest such Net Cash Proceeds in any manner that is not prohibited by the foregoing clauses (3)(a) and (3)(b)terms of this Indenture.
(bd) On the 366th day after an Asset Sale or such any earlier date, if any, as on which the Board of Directors of the Company or of such the applicable 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) accordance with the provisions of Section 4.10(a4.15(b) (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied or contractually committed to be applied (and to the extent not subsequently applied, the Net Proceeds Offer Trigger Date related thereto shall be deemed to be the date of termination of such contractual commitment or any earlier date, if any, on which the Board of Directors of the Company or the board of the applicable Restricted Subsidiary determines not to apply the Net Cash Proceeds in accordance with such contractual commitment) on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(a), (3)(b) and (3)(c) by the provisions of Section 4.10(a4.15(b) or (the last proviso of this paragraph (each, a “"Net Proceeds Offer Amount”") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase (or repay, prepay or redeem, as the “case may be) (the "Net Proceeds Offer”") to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “"Net Proceeds Offer Payment Date”") that is not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and all holders of Indebtedness that is equal in right of payment with the Notes and contains provisions requiring that an offer to purchase such Pari Passu Indebtedness) (and holders other Indebtedness be made with the proceeds of any such Pari Passu Indebtedness) the Asset Sale, on a pro rata basis, the maximum principal amount of Notes and Pari Passu other Indebtedness that may be purchased with the Net Proceeds Offer Amount. Notwithstanding the foregoing, the obligation to make a Net Proceeds Offer shall be suspended until such time as the aggregate amount of the Net Proceeds Offer Amount at a is equal to or exceeds €20 million. The offer price in any Net Proceeds Offer will be equal to 100% of the principal amount value of the Notes and Pari Passu Indebtedness to be purchased, plus any accrued and unpaid interest thereon, if any, to the date of purchase; provided, however, that if at any time . The following events will be deemed to constitute an Asset Sale and the Net Cash Proceeds for such Asset Sale must be applied in accordance with this Section 4.15: (i) in the event any non-cash consideration received by the Company or any Restricted Subsidiary of the Company, as the case may be, Company in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied (ii) 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 $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 5.01 and as a Change of Controlresult thereof the Company is no longer an obligor on the Notes, 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 4.10 4.15, and shall comply with the provisions of this Section 4.10 4.15 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value 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 4.104.15.
(ce) Notwithstanding Sections 4.10(a) and (b)the preceding paragraphs, the Company and its Restricted Subsidiaries will be permitted to consummate may con-summate an Asset Sale without complying with such Sections paragraphs to the extent that:
(1i) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
Assets or Related Businesses and (2ii) such Asset Sale is for fair market valueFair Market Value; provided provided,however, that any consideration that does not constituting constitute Replacement Assets or Related Businesses that is received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) paragraph shall constitute Net Cash Proceeds and will be subject to the provisions described in the preceding paragraphs.
(f) Each notice of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each a Net Proceeds Offer will pursuant to this Section 4.15 shall be mailed by the Company to the record Holders as shown on the register of Holders within 25 Notes not more than 30 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice Offer and shall statestate the following terms:
(1) that the Net Proceeds Offer is being made pursuant to Section 4.15 of this Section 4.10 and Indenture, that (subject to the provisions hereof) all Notes tendered will be accepted for payment; provided,however, that if the aggregate principal amount of Notes tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of the Net Proceeds Offer, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that no Note of less than $75,000 or €50,000, as the case may be, shall remain outstanding thereafter) 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 purchase price (including the amount of accrued interest) and the purchase date Net Proceeds Offer Payment Date (which shall be not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Payment DateTrigger Date and which shall be at least five Business Days after the Trustee receives notice thereof from the Company);
(3) that any Note not tendered will continue to accrue interest if interest is then accruinginterest;
(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 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 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 5:00 p.m., New York City time, on the second Business Day preceding 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 Notes the Holder 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 of the circumstances appropriate series in a principal amount equal to the unpurchased portion of the Note surrendered; provided,however, that each such new Note shall be in the same currency as the tendered Note and relevant facts regarding such in a principal amount of $75,000 or €50,000, as the case may be, or an integral multiple of $1,000 or €1,000, as the case may be, in excess thereof. On or before the Net Proceeds Offer. Upon receiving notice Offer Payment Date, the Company shall (i) accept for payment Notes or portions thereof (in a principal amount of $75,000 or €50,000, as the case may be, or an integral multiple of $1,000 or F1,000, as the case may be, in excess thereof) validly tendered pursuant to the Net Proceeds Offer, (ii) deposit with the Paying Agent, in accordance with Section 2.14, U.S. Legal Tender (in the case of Dollar Notes) and/or euro (in the case of Euro Notes) sufficient to pay the purchase price plus accrued and unpaid interest, if any, of all Notes to be purchased and (iii) deliver to the Trustee Notes so accepted together with an Officer's Certificate stating the Notes or portions thereof being purchased by the Company. Upon receipt by the Paying Agent of the monies specified in clause (ii) above and a copy of the Officer's Certificate specified in clause (iii) above, the Paying Agent shall promptly mail to the Holders may elect of Notes so accepted payment in an amount equal to tender their the purchase price plus accrued and unpaid interest, if any, out of the funds deposited with the Paying Agent in accordance with the preceding sentence. The Trustee shall promptly authenticate and mail or cause to be transferred by book-entry to such Holders new Notes equal in whole or principal amount to any unpurchased portion of the Notes surrendered; provided that each such new Note shall be in part the same currency as the surrendered Note and in integral multiples a principal amount of $1000 75,000 or €50,000, as the case may be, or an integral multiple of $1,000 or €1,000, as the case may be, in exchange excess thereof. Upon the payment of the purchase price for cashthe Notes accepted for purchase, the Trustee shall return the Notes purchased to the Company for cancellation. Any monies remaining after the purchase of Notes pursuant to a Net Proceeds Offer shall be returned within three Business Days by the Trustee to the Company except with respect to monies owed as obligations to the Trustee pursuant to Article Seven. For purposes of this Section 4.15, the Trustee shall act as the Paying Agent for the Dollar Notes and the Euro Paying Agent shall act as the Paying Agent for the Euro Notes. To the extent Holders properly tender the amount of Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the tendered pursuant to any Net Proceeds Offer Amountis less than the amount of Net Cash Proceeds 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 Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the such Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by lawreset to zero. The Company shall 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 rule, 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 thisthe provisions of this Indenture relating to a Net Proceeds Offer, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations relating to such Net Proceeds Offer by virtue thereof.
Appears in 1 contract
Sources: Indenture (Lyondell Chemical Co)
Limitation on Asset Sales. (a) The Company shall not, and the Company shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
in one or a series of related transactions, convey, sell, transfer (1) other than the Company or the applicable Restricted Subsidiarygranting of any Permitted Lien), 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 dispose of (as determined in good faith including through damage or destruction for which insurance proceeds are paid or by the Company’s Board condemnation), directly or indirectly, any of Directors);
(2) at least 75% of the consideration received by the Company or the Restricted Subsidiaryits properties, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents and shall be received at the time of such disposition; provided that, for purposes of this clause (2) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall applybusinesses, or cause such Restricted Subsidiary to applyassets, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(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 whether owned on the Issue Date or in businesses reasonably related thereto thereafter acquired (“Replacement Assets”); or
an "Asset Sale") unless: (ci) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 therefrom are applied to such Asset Sale as set forth in clauses (3)(a), (3)(b) the repurchase of the Notes pursuant to an Offer to Purchase and (3)(cii) of Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 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 such Pari Passu Indebtedness) (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 100least 85% 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 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 4.10. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
Sales consists of (2x) cash, (y) the assumption of Debt of the Company, or any of its Subsidiaries and the release of the Company or Subsidiary from all liability on such Debt in connection with such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets Sale, or (z) securities received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to from the provisions of Sections 4.10(a) and (b)transferee that are promptly converted by the Company or Subsidiary into cash. The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that Notwithstanding the foregoing:
(i) any Subsidiary of the Supplemental Indenture is executed and in effect concurrently with Company may convey, sell, lease, transfer, or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the consummation Company or a wholly owned Subsidiary of such Inversion Transaction; the Company;
(ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to any Subsidiary of the Company than immediately prior to may convey, sell, lease, transfer, or otherwise dispose of assets in the ordinary course of business and on ordinary business terms if the aggregate proceeds from all such Inversion Transaction; Asset Sales not otherwise permitted do not exceed $2 million in any twelve-month period;
(iii) immediately following such Inversion Transactionthe Company may convey, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal sell, lease, transfer, or otherwise dispose of assets pursuant to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and in accordance with Section 5.1;
(iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 and any Subsidiary of additional Indebtedness the Company may (a) sell damaged, worn out, or other than Permitted Indebtednessobsolete property in the ordinary course of business or other property no longer necessary for the proper conduct of the business or (b) in compliance with Section 4.03. Each Net Proceeds Offer will abandon such property if it cannot, through reasonable efforts, be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for paymentsold;
(2v) the purchase price (including the amount of accrued interest) Company and the purchase date (which shall be the Net Proceeds Offer Payment Date)its Subsidiaries may sell accounts receivable to an Accounts Receivable Subsidiary in accordance with Section 4.21;
(3vi) that any Note not tendered will continue to accrue interest if interest is then accruing;
(4) that, unless the Company defaults in making payment thereforand its Subsidiaries may convey, 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 the Notesell, with the form entitled “Option transfer or otherwise dispose of Holder to Elect Purchase” on the reverse of the Note completed, to the Paying Agent at the address specified crude oil and refined products in the notice prior to the close ordinary course of business on the third 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 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchasedbusiness; and
(7vii) the circumstances Company may sell two Avon 1535 Gas Turbines and relevant facts regarding such Net Proceeds Offer. Upon receiving notice related equipment for cash proceeds of at least $6 million;
(viii) the Net Proceeds Offer, Holders Company may elect to tender their Notes sell or otherwise dispose of shares of TransTexas common stock only in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The Company shall comply accordance 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 thisSection 12.
Appears in 1 contract
Limitation on Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an engage in any Asset Sale unless:
unless (1i) the Company or the applicable such Restricted 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 Properties sold or otherwise disposed of pursuant to the Asset Sale, (as determined in good faith by the Company’s Board of Directors);
(2ii) at least 75% of the consideration received by the Company or the Restricted Subsidiary, as the case may be, from in respect of such Asset Sale shall be consists of cash, Cash Equivalents or properties used in the form Oil and Gas Business of cash or Cash Equivalents and shall be received at the time of such disposition; provided that, for purposes of this clause (2) any securities, notes or other obligations received by the Company or its Restricted Subsidiaries and (iii) the Company delivers to the Trustee an Officers' Certificate certifying that such Asset Sale complies with clauses (i) and (ii) of this Section 10.17(a). The amount (without duplication) of any such Restricted Subsidiary from such transferee that are converted by Indebtedness (other than Subordinated Indebtedness) of the Company or such Restricted Subsidiary into cash or Cash Equivalents (to that is expressly assumed by the extent of the cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to transferee in such Asset Sale within 365 days of receipt thereof either:
(a) and with respect to permanently reduce Indebtedness under the Credit Agreement 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;
(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”); or
(c) a combination of prepayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(b) 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 Section 4.10(a) (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 clauses (3)(a), (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this paragraph (each, a “Net Proceeds Offer Amount”) shall be applied by which 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 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 such Pari Passu Indebtedness) (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 Company or any Restricted Subsidiary of the CompanySubsidiary, 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 unconditionally released by the Net Cash 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 $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 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 holder of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold Indebtedness, shall be deemed to be Net cash or Cash Proceeds Equivalents for purposes of this Section 4.10clause (ii) and shall also be deemed to constitute a repayment of, and a permanent reduction in, the amount of such Indebtedness for purposes of the following paragraph.
(cb) Notwithstanding Sections 4.10(a) and (b), the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by If the Company or any of its Restricted Subsidiaries Subsidiary engages in connection with any an Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to Sale, the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that Company or such Restricted Subsidiary may either, no later than 360 days after such Asset Sale, (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that or any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Available Proceeds Offer, Holders may elect therefrom to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu repay Senior Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisincluding Senior
Appears in 1 contract
Limitation on Asset Sales. (a) The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, consummate complete an Asset Sale unless:
(1) the Company or the such applicable Restricted 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 Fair Market Value of the assets sold or otherwise disposed of (as determined in good faith by the Company’s Board of Directors)of;
(2) at least not less than 75% of the consideration received by the Company or the such applicable Restricted Subsidiary, as the case may be, from such Asset Sale shall be is in the form of (A) cash or Cash Equivalents Equivalents, or (B) Replacement Assets, and shall be in each case set forth in subclauses (A) and (B) of this clause (a)(2), is received at the time of such sale or other disposition; provided thatprovided, for purposes that the amount of this clause (2i) any securities, notes Debt or other obligations liabilities that would appear as liabilities on a balance sheet prepared in accordance with GAAP (other than subordinated Debt) of the Company or any such applicable Restricted Subsidiary that is actually assumed by the transferee in such Asset Sale (or a third party on behalf of the transferee) and from which the Company or such applicable Restricted Subsidiaries are fully and unconditionally released, (ii) any securities or notes received by the Company or any such applicable Restricted Subsidiary from such transferee that which are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents within 180 days of such Asset Sale (to the extent of the cash or Cash Equivalents received), and (iii) within 30 days after receipt any Designated Non-Cash Consideration received by the Company or such applicable Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iii) that is at that time outstanding, not to exceed $37,500,000 (with the Fair Market Value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value), will be considered “cash” or “Cash Equivalents”deemed to be cash for purposes of this clause (a)(2) and to have been received at the time of such sale; and
(3) upon The Asset Sale Proceeds received by the consummation Company or such Restricted Subsidiary, as the case may be, may be applied, at the option of the Company or such Restricted Subsidiary:
(A) if the assets subject of such Asset Sale constitute Notes Priority Lien Collateral, to prepay, repay or purchase (or offer to prepay, repay or purchase, as applicable) the Notes, the Outstanding 2016 Notes and any other Priority Lien Obligations on a pro rata basis; provided, that any repayment, prepayment or purchase of (or offer to prepay, repay or purchase) obligations under the Notes shall be made as provided in Section 11.07, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus accrued unpaid interest) or by making an offer (in accordance with the procedures set forth below for an Excess Proceeds Offer) to all Holders of Notes 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 purchased;
(B) if the assets subject of such Asset Sale do not constitute Notes Priority Lien Collateral, to prepay, repay or purchase (or offer to prepay, repay or purchase, as applicable) indebtedness under any Credit Facilities or any other secured Debt of the Company (including the Notes or the Outstanding 2016 Notes) or any Restricted Subsidiary (other than Subordinated Lien Debt); provided, that any repayment, prepayment or purchase of (or offer to prepay, repay or purchase) obligations under the Notes shall be made as provided in Section 11.07, through open-market purchases (to the extent such purchases are at or above 100% of the principal amount thereof plus accrued unpaid interest) or by making an offer (in accordance with the procedures set forth below for an Excess Proceeds Offer) to all Holders of Notes 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 purchased; or
(C) with respect to the proceeds of any Asset Sale, the Company shall apply, to make capital expenditures or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
(a) to permanently reduce Indebtedness under the Credit Agreement 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;
(b) to make an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale are used or in properties and assets (including Capital Stock) that will be used useful in the business of the Company and or its Restricted Subsidiaries or in businesses reasonably similar to or ancillary to the business of the Company or its Restricted Subsidiaries as existing on conducted at the Issue Date time of such Asset Sale (including the acquisition of Capital Stock of any such business or in businesses reasonably related thereto (“Replacement Assets”businesses); or
provided, that (ci) a combination of prepayment and such investment permitted by the foregoing clauses occurs or (3)(aii) and (3)(b).
(b) On the 366th day after an Asset Sale or such earlier date, if any, as the Board of Directors of the Company or of any such Restricted Subsidiary determines not enters into contractual commitments to so apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses Proceeds, subject only to customary conditions (3)(aother than the obtaining of financing), in each case, within 365 days following the receipt of such Asset Sale Proceeds (3)(b) and and, in the case of any commitment referred to in the preceding clause (3)(c) of Section 4.10(a) (each, a “Net Proceeds Offer Trigger Date”ii), the transactions contemplated thereby are consummated within 180 days of the 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 clauses (3)(acommitment is entered into); provided, (3)(b) and (3)(c) of Section 4.10(a) or the last proviso of this 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 andfurther, to the extent required by Asset Sale Proceeds of Collateral are used to acquire additional assets, such additional assets (other than, for avoidance of doubt, Excluded Assets) are pledged subject to the terms Intercreditor Agreement and the Collateral Trust Agreement, as Collateral for the benefit of any Pari Passu Indebtednessthe Collateral Trustee, to all the Trustee, the Holders of Notes, the 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 Outstanding 2016 Notes and the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (and holders of trustee for the Outstanding 2016 Notes. Pending any such Pari Passu Indebtednessreinvestment (x) Asset Sale Proceeds of Notes Priority Lien Collateral shall, as promptly as practicable, subject to the Intercreditor Agreement, be deposited in a Noteholder Proceeds Collateral Account pledged as Notes Priority Lien Collateral for the benefit of the Priority Lien Obligations, ABL Debt Obligations and Subordinated Lien Obligations in accordance with the Intercreditor Agreement and the Collateral Trust Agreement, and (y) Asset Sale Proceeds of ABL Priority Lien Collateral shall, as promptly as practicable, subject to the Intercreditor Agreement, be deposited in a deposit account or securities account pledged as ABL Priority Lien Collateral for the benefit of the ABL Debt Obligations, Priority Lien Obligations and Subordinated Lien Obligations in accordance with the Intercreditor Agreement and the Collateral Trust Agreement. If on a pro rata basissuch 365th day following any Asset Sale, the maximum Available Asset Sale Proceeds from such Asset Sale exceed $15,000,000, the Company will apply an amount of equal to such Available Asset Sale Proceeds to an offer to repurchase the Notes and, at its option, other Debt that is secured on an equal and Pari Passu Indebtedness that may be purchased with ratable basis (including the Net Proceeds Offer Amount Outstanding 2016 Notes) at a purchase price in cash equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness to be purchasedsuch other Debt, plus accrued and unpaid interest thereoninterest, if any, to the purchase date of purchase; provided, however, that if at any time any non-cash consideration received by (an “Excess Proceeds Offer”). The Company may satisfy 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 foregoing obligations with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Available Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.10. The Company may defer the Net by making an Excess Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b)). 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 4.10 and shall comply with the provisions of this Section 4.10 with respect to such deemed sale as if it were Available Asset Sale Proceeds prior to the expiration of the relevant 365 day period (or such longer period provided above) or with respect to Available Asset Sale Proceeds of less than $15,000,000. If an Asset Sale. In additionExcess Proceeds Offer is not fully subscribed, the fair market value of such properties Company may retain and assets use for general corporate purposes the portion of the Company or its Restricted Subsidiaries deemed Available Asset Sale Proceeds not required to be sold repurchase Notes. Upon completion of any Excess Proceeds Offer, the amount of Available Asset Sale Proceeds shall be deemed reset to be Net Cash Proceeds for purposes of this Section 4.10zero.
(cb) Notwithstanding Sections 4.10(a) and (b), If the Company and its Restricted Subsidiaries will be permitted is required to consummate make an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Excess Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion TransactionOffer, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to mail, within 30 days of the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days 365th day following the Net receipt of the Available Asset Sale Proceeds Offer Trigger Dateexceeding $15,000,000 as specified in Section 10.09(a), with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders Holders, at the address appearing in the Security Register maintained by the Security Registrar, stating the information set forth below. The notice, which shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to govern the Net terms of the Excess Proceeds Offer. Such notice , shall state:
(1A) that the Net Company is offering to apply the Available Asset Sale Proceeds Offer is being made pursuant to this Section 4.10 repurchase such Notes at a purchase price in cash equal to 100% of the principal amount of the Notes, plus accrued and that (subject unpaid interest, if any, to the provisions hereof) all Notes tendered will be accepted for paymentpurchase date;
(2B) the purchase price (including the amount of accrued interest) and the purchase date (which shall be no earlier than 30 days nor later than 60 days from the Net Proceeds Offer Payment Datedate such notice is mailed);
(3C) the instructions that any Note not tendered will continue to accrue interest if interest is then accruing;
(4) that, unless the Company defaults each Holder must follow 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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election order to have such Note Notes purchased, which shall be reasonable and customary for transactions of this nature; and
(7D) the circumstances and relevant facts regarding such Net calculations used in determining the amount of Available Asset Sale Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal applied to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period purchase of 20 business days or such longer period as may be required by lawNotes. 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 a Net in connection with an Excess Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis Section 10.09, the Company shall comply with the applicable securities laws and regulations and shall be deemed not to have breached its obligations under this Section 10.09 by virtue of such compliance.
Appears in 1 contract
Sources: Indenture (Catalyst Paper Corp)
Limitation on Asset Sales. (aA) 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 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);
(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 or cash, Cash Equivalents or Replacement Assets and shall be received at the time of such disposition; provided that:
(a) the amount of 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 (other than liabilities that are by their terms subordinated in right of payment to the Notes or any Guarantee of a Guarantor) that are assumed by the transferee of any such assets, for purposes and
(b) the fair market value of this clause (2) 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 Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 180 days after receipt will such Asset Sale, shall be considered “cash” or “Cash Equivalents”deemed to be cash for purposes of this provision; and
(3) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof (provided that if the Company or 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 permanently reduce Indebtedness repay any Obligations under the Credit Agreement Agreements or any Guarantor Senior Debt and, in the case of any such Indebtedness under any 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 to the extent that the assets that were the subject of such Asset Sale constituted Collateral such Replacement Assets shall also be required to constitute Collateral; orand/or
(c) a combination of prepayment repayment and investment permitted by the foregoing clauses (3)(a) and (3)(b).
(bB) Pending the final application of such Net Cash Proceeds, the Company may temporarily reduce borrowings under the Credit Agreements 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 Section 4.10(aparagraph (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 that 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 Section 4.10(a) or the last proviso of this preceding paragraph (each, 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 andand (x) in the case of Net Cash Proceeds which are received as a result of an Asset Sale of Collateral, to the extent required pursuant to the documentation governing any Pari Passu Junior Lien Obligations, an offer to purchase to the holders of such Pari Passu Junior Lien Obligations and (y) in the case of Net Cash Proceeds which are not received as a result of an Asset Sale of Collateral, to the extent required by the terms of any Pari Passu IndebtednessDebt, an offer to purchase to all holders of such Pari Passu IndebtednessDebt, on a date (the “Net Proceeds Offer Payment Date”) not less than 30 nor more than 45 60 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (and and, if applicable, holders of any such Pari Passu IndebtednessJunior Lien Obligations or Pari Passu Debt) on a pro rata basis, the maximum that amount of Notes and (and, if applicable, Pari Passu Indebtedness that may be purchased with Junior Lien Obligations or Pari Passu Debt) equal to the Net Proceeds Offer Amount at a price equal to 100% of the principal amount of the Notes and (and, if applicable, Pari Passu Indebtedness Junior Lien Obligations or Pari Passu Debt) to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase; provided, however, that if .
(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 4.10. .
(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 $10.0 15.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 15.0 million, shall be applied as required pursuant to this Section 4.10(b4.10)). .
(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 5.015.1, which transaction does not constitute a Change of Control, the successor corporation shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this Section 4.10 covenant, and shall comply with the provisions of this Section 4.10 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 4.10.
(cF) 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 4.10. Upon completion of each Net Proceeds Offer, the Net Proceeds Offer Amount will be reset at 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 Sections 4.10(aparagraphs (A) and (b)B) of this Section 4.10, the Company and its Restricted Subsidiaries will be permitted to enter into and consummate an Asset Sale Swap without complying with such Sections paragraphs to the extent that:
(1) at least 75% the time of the consideration for entering into such Asset Sale constitutes Replacement AssetsSwap or immediately after giving effect to such Asset Swap, no Default or Event of Default shall have occurred or be continuing or would occur as a consequence thereof;
(2) in the case of any Asset Swap of Collateral, the assets received by the Company and its Restricted Subsidiaries constitute Collateral; and
(23) in the event that such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by Swap involves an aggregate amount in excess of $10.0 million, a majority of the Company or any members of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions Board of Sections 4.10(a) and (b). The provisions Directors of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P have approved the terms of such Asset Swap and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and determined that the consideration received in such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio Asset Swap is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to fair market value of the assets disposed of in such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice shall state:Asset Swap.
(1I) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment;
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 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 Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and
(7) the circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice of the Net Proceeds Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. The Company shall 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 notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisthis Section 4.10, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue thereof.
Appears in 1 contract
Sources: Indenture (Dole Food Co 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:
(1i) 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 's Board of Directors);
(2ii) at least 75% of the consideration received by the Company or the such Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents and shall be is received at the time of such disposition; provided thatthat the amount of (x) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), for purposes of this clause the Company or any Restricted Subsidiary (2other than (I) contingent liabilities (except to the extent reflected (or reserved for) on a balance sheet of the Company or any Restricted Subsidiary as of the date prior to the date of consummation of such transaction) and (II) liabilities that are by their terms subordinated to the Notes or the Note Guarantees) that are assumed by the transferee of any such assets and (y) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 90 days by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the so received), shall be deemed to be cash or Cash Equivalents received) within 30 days after receipt will be considered “cash” for purposes of this provision, provided further, that the 75% limitation referred to above shall not apply to any Asset Sale in which the cash portion of the consideration received therefor is equal to or “Cash Equivalents”greater than the after-tax net cash proceeds that would have been received by the Company had a transaction involving the same assets complied with the aforementioned 75% limitation but was not structured with the same tax benefits as the actual transaction; and
(3iii) upon the consummation of an Asset Sale, the Company shall apply, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
either (aA) to permanently reduce prepay or irrevocably cash collateralize any Senior Indebtedness under the Credit Agreement and, in the case of any such Senior Indebtedness under any revolving credit facilityRevolving Credit Facility, effect a permanent reduction in the availability under such revolving credit facility;
Revolving Credit Facility, (bB) to make an investment in in, or Business Acquisition of, properties and assets (other than cash, Cash Equivalents or inventory) that (x) replace the properties and assets that were the subject of such Asset Sale or in properties and assets (including Capital Stocky) that will be used in a Permitted Business ("Replacement Assets"); provided, ------------------ however, that in the business of event the Company and its or such Restricted Subsidiaries as existing on Subsidiary made an investment in, or Business Acquisition of, Replacement Assets within 180 days prior to such sale, such prior investment shall also satisfy the Issue Date requirements of this clause (B), or in businesses reasonably related thereto (“Replacement Assets”); or
(cC) a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) 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)(aa)(iii)(A), (3)(biii)(B) and (3)(c) of Section 4.10(aiii)(C) (each, a “"Net --- Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that --------------------------- which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aa)(iii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this paragraph (each, 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 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with equal to 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 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 or Cash Equivalents (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 4.104.16. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 million 5,000,000 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 $10.0 million5,000,000, shall be applied as required pursuant to this Section 4.10(bparagraph)). .
(c) 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 Control5.1, 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 4.10 4.16, and shall comply with the provisions of this Section 4.10 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 shall be deemed to be Net Cash Proceeds for purposes of this Section 4.104.16.
(cd) Notwithstanding Sections 4.10(aparagraphs (a) and (b), the Company and its Restricted Subsidiaries will shall be permitted to consummate an Asset Sale without complying with such Sections paragraphs to the extent that:
extent: (1i) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
Assets (2including inventory) and the remainder constitutes cash or Cash Equivalents and (ii) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets (including inventory) received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) paragraph shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and paragraph (b). The provisions of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that .
(ie) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will shall be mailed to the record Holders as shown on the register of Holders within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Net Proceeds Offer. Such notice Offer and shall statestate the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 4.16 and that (subject to the provisions hereof) all Notes tendered will be accepted for payment; provided, however, that if the aggregate principal amount of Notes tendered in a Net Proceeds Offer plus accrued interest at the expiration of such offer exceeds the aggregate amount of the Net Proceeds Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (based on amounts tendered) (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased);
(2) the purchase price (including the amount of accrued interest) and the purchase date (which shall be 20 Business Days from the Net date such notice is mailed, or such longer period as may be required by law) (the "Proceeds Offer Payment Purchase Date");; ----------------------
(3) that any Note not tendered will continue to accrue interest if interest is then accruing;
(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 Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to a Net Proceeds Offer will be required to surrender the Note, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business 5:00 p.m., New York City time, on the third business day prior to the Net Proceeds Offer Payment Purchase Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding the Net Proceeds Offer 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 his election to have such Note purchased; and
(7) that Holders whose Notes were purchased only in part will be issued new Notes equal to principal amount to the circumstances and relevant facts regarding such unpurchased portion of the Notes surrendered.
(f) On or before the Proceeds Purchase Date, the Company shall (i) accept for payment Notes or portions thereof tendered pursuant to the Net Proceeds OfferOffer which are to be purchased in accordance with item (b) above, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price of all Notes to be purchased and (iii) deliver to the Trustee Notes so accepted for cancellation pursuant to Section 2.11, together with an Officers' Certificate stating the Notes or portions thereof being purchased by the Company. Upon receiving notice The Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an amount equal to the purchase price plus accrued interest, if any and the Company shall execute and issue, and the Trustee shall promptly authenticate and mail or deliver to such Holders new Notes equal in principal amount to any unpurchased portion of the Notes surrendered. The Company shall publicly announce the results of the Net Proceeds OfferOffer on or as soon as practicable after the Proceeds Purchase Date. For purposes of this Section 4.16, Holders may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. the Trustee shall act as the Paying Agent.
(g) To the extent Holders properly tender that the aggregate amount of Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding tendered pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Company may use any remaining Net Proceeds Offer Amount for general corporate purposes.
(if any). A Net Proceeds Offer shall remain open for a period of 20 business days or such longer period as may be required by law. h) 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 a Net Proceeds Offer. To the extent that the provisions of any securities laws or regulations conflict with thisSection 4.16, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under Section 4.16 by virtue thereof.
Appears in 1 contract
Sources: Indenture (PSS Holding 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:
unless (1i) 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 's Board of Directors);
, (2ii) at least 75% of the consideration received for the assets sold by the Company or the Restricted Subsidiary, as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents and shall be is received at the time of such disposition; provided thatprovided, for purposes of this clause however, that (2A) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee as -------- ------- consideration for an Asset Sale that are converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents immediately following the consummation of such Asset Sale or (B) the assumption by the purchaser of assets pursuant to an Asset Sale of liabilities of the Company (other than liabilities that are by their terms subordinate to the extent Securities) shall, in each case of the immediately preceding clauses (A) and (B), be deemed to be cash or Cash Equivalents receivedat the time of such Asset Sale in an amount equal to, in the case of clause (A), the amount of cash or Cash Equivalents realized on such conversion and, in the case of clause (B), the amount of the liabilities so assumed, as reflected on the balance sheet of the Company, and (iii) within 30 days after receipt will be considered “cash” or “Cash Equivalents”; and
(3) upon following the consummation of an Asset Sale, the Company shall applyshall, or shall cause such Restricted Subsidiary to applySubsidiary, the Net Cash Proceeds relating to such Asset Sale within 365 days of receipt thereof either:
either (aA) to permanently reduce apply the Net Cash Proceeds related to such Asset Sale to prepay any Indebtedness under that by its terms is not subordinate to the Credit Agreement andSecurities, in the case of any such Indebtedness under any revolving credit facility, effect a permanent reduction in the availability under such revolving credit facility;
(bB) to make a Permitted Investment or 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 a Related Business (“collectively, "Replacement Assets”); or
") or (cC) a combination of prepayment and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) . On the 366th 365th day after an Asset Sale 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)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) the next preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such the applicable Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(athe next preceding sentence (or, in the case of a Net Proceeds Offer Trigger Date occurring prior to such 365th day, the aggregate amount of Net Cash Proceeds that the Board of Directors has determined not to so apply) or the last proviso of this paragraph (each, 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 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 such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basisbasis (and on a pro rata basis with the holders of Indebtedness of the Company that is not by its terms subordinate to the Securities), the maximum that amount of Notes and Pari Passu Indebtedness that may be purchased with Securities equal to the Net Proceeds Offer Amount at a price equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness Securities to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchase; provided, however, that if at any time any non-cash consideration -------- ------- received by the Company or any Restricted Subsidiary of the Company, as the case may be, in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any such non-cash consideration), then such conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this Section 4.104.17. The Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0 5.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 5.0 million, shall be applied as required pursuant to this Section 4.10(b)paragraph). In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted per- mitted 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 4.10 4.17, and shall comply with the provisions of this Section 4.10 4.17 with respect to such deemed sale as if it were an Asset Sale. In addition, the fair market value of such properties and assets of the Company or its Restricted Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section 4.10.
(c) 4.17. Notwithstanding Sections 4.10(a) and (b)the two immediately preceding paragraphs, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections paragraphs to the extent that:
(1i) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
Assets and (2ii) such Asset Sale is for fair market value; provided that any consideration not -------- constituting Replacement Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) paragraph shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b)the two preceding paragraphs. The provisions Notice of this Section 4.10 shall not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other than Permitted Indebtedness) in compliance with Section 4.03. Each each Net Proceeds Offer will pursuant to this Section 4.17 shall be mailed or caused to be mailed, by first class mail, by the record Holders as shown on the register of Holders Company within 25 days following the applicable Net Proceeds Offer Trigger DateDate to all Holders at their last registered addresses, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes Securities pursuant to the Net Proceeds Offer. Such notice Offer and shall statestate the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 4.17 and that (subject to the provisions hereof) all Notes Securities tendered will be accepted for payment; provided, however, that if the principal amount of Securities tendered in -------- ------- the Net Proceeds Offer exceeds the Net Proceeds Offer Amount, the Company shall select the Securities to be purchased on a pro rata basis;
(2) the purchase Net Proceeds Offer price (including the amount of accrued interest, if any) and the purchase date (which shall be the Net Proceeds Offer Payment Date);
(3) that any Note Security not tendered will continue to accrue interest if interest is then accruinginterest;
(4) that, unless the Company defaults in making payment therefor, any Note 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 Note Security purchased pursuant to a the Net Proceeds Offer will be required to surrender the NoteSecurity, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third business day prior to the Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than 5:00 p.m., New York City time, on the second Business Day preceding prior to the Net Proceeds Offer Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes Security the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note Security purchased; and
(7) that Holders whose Securities are purchased only in part will be issued new Securities in a principal amount at maturity equal to the circumstances and relevant facts regarding such unpurchased portion of the Securities surrendered. On or before the Net Proceeds Offer. Upon receiving notice of Offer Payment Date, the Company shall (i) accept for payment Securities or portions thereof tendered pursuant to the Net Proceeds Offer, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price, plus 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 may elect to tender their Notes in whole or in part in integral multiples of $1000 in exchange for cash. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness Securities so accepted payment in an amount exceeding the Net Proceeds Offer Amount, the tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal to the Net Proceeds Offer Amount (purchase price, plus accrued interest, if any), thereon and the Trustee shall promptly authenticate and mail to such Holders new Securities equal in principal amount to any unpurchased portion of the Securities surrendered. A Any Securities not so accepted shall be promptly mailed by the Company to the Holder thereof. For purposes of this Section 4.17, the Trustee shall act as the Paying Agent. Any Net Proceeds Offer shall remain open for a period of at least 20 business days Business Days (or such longer period as may be required by law) and until the close of business on the Net Proceeds Offer Payment Date. The Company shall comply with the requirements of Rule 14e-1 all tender offer rules under state and federal securities laws, including, but not limited to, Section 14(e) under the Exchange Act and any other securities laws and regulations thereunder Rule l4e-1 thereunder, to the extent applicable to such laws and regulations are applicable in connection with the repurchase of Notes pursuant to a Net Proceeds Offeroffer. To the extent that the provisions of any securities laws or regulations conflict with thisthe foregoing provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the foregoing provisions of this Indenture by virtue thereof. Upon completion of a Net Proceeds Offer, the amount of Net Cash Proceeds will be reset at zero. Accordingly, to the extent that the aggregate amount of Securities tendered pursuant to a Net Proceeds Offer is less than the Net Cash Proceeds, any remaining Net Cash Proceeds held by the Trustee shall be returned by the Trustee to the Company and the Company may use any remaining Net Cash Proceeds for general corporate purposes.
Appears in 1 contract
Sources: Indenture (Leslies Poolmart 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:
unless (1i) 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 's Board of Directors);
, (2ii) at least 75% of the consideration received by the Company or the such Restricted SubsidiarySubsidiary (exclusive of indemnities), as the case may be, from such Asset Sale shall be in the form of cash or Cash Equivalents and shall be received at the time of such disposition; provided that, for purposes that the amount of this clause (2a) any securitiesliabilities (as shown on the Company's or such Re- stricted Subsidiary's most recent balance sheet) of the Company or any such Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Securities) that are assumed by the transferee of any such assets, (b) any notes or other obligations Obligations received by the Company or any such Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 30 days after receipt will and (c) any Designated Non-cash Consideration received by the Company or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (c), not to exceed $5 million (with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value), shall be considered “cash” or “Cash Equivalents”deemed to be cash for the purposes of this clause (ii); and
and provided, further, that the TEK Transaction shall not be subject to this clause (3ii), and (iii) upon the consummation of an Asset Sale, the Company shall applyapply directly or through a Restricted Subsidiary, or cause such Restricted Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within 365 270 days of receipt thereof either:
either (aA) to permanently reduce repay any Indebtedness under ranking at least pari passu with the Credit Agreement and, Securities and the Guarantees (and in the case of any such Indebtedness outstanding under any a revolving credit facility, effect a permanent reduction to permanently reduce the amounts that may be reborrowed thereunder by an equivalent amount), with the Net Cash Proceeds received in the availability under such revolving credit facility;
respect thereof, (bB) to make an investment reinvest in properties and assets that replace the properties and assets that were the subject of such Asset Sale Productive Assets, 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”); or
(cC) a combination of prepayment prepayment, reduction and investment permitted by the foregoing clauses (3)(aiii)(A) and (3)(biii)(B).
(b) ; provided that the 75% limitation referred to above shall 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 366th 271st 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)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) the next preceding sentence (each, a “"Net Proceeds Offer Trigger Date”"), such aggregate amount of Net Cash Proceeds that which have not been applied on or before such Net Proceeds Offer Trigger Date as permitted in clauses (3)(aiii)(A), (3)(biii)(B) and (3)(ciii)(C) of Section 4.10(a) or the last proviso of this paragraph next preceding sentence (each, a “"Net Proceeds Offer Amount”") shall be applied by the Company or such Restricted Subsidiary to make an offer to purchase repurchase (the “"Net Proceeds Offer”") to all Holders and, to the extent required by the terms of any Pari Passu Indebtedness, to all holders of such Pari Passu Indebtedness, on a date (the “"Net Proceeds Offer Payment Date”") not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Trigger Date, from all Holders (and holders of such Pari Passu Indebtedness) (and holders of any such Pari Passu Indebtedness) on a pro rata basis, the maximum basis that amount of Notes and Pari Passu Indebtedness that may be purchased with Securities equal to the Net Proceeds Offer Amount at a price equal to 100% of the principal amount of the Notes and Pari Passu Indebtedness Securities to be purchasedrepurchased, plus accrued and unpaid interest thereoninterest, if any, to the date of purchaserepurchase. Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less than $10 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 $10 million, at which time the Company shall 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 equal to $10 million or more shall be 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 Net Proceeds Offer Amount, the Company or any Guarantor may use such amount for general corporate purposes. Upon completion of any Net Proceeds Offer, the Net Proceeds Offer Amount shall be reset to zero. Notwithstanding the two immediately preceding paragraphs, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraphs to the extent (i) at least 75% of the consideration for such Asset Sale constitutes Productive Assets and (ii) such Asset Sale is for fair market value (as determined in good faith by the Company's Board of Directors); provided, however, provided that if at any time any non-cash consideration not constituting Productive Assets received by the Company or any of its Restricted Subsidiary of the Company, as the case may be, Subsidiaries in connection with any Asset Sale is converted into or sold or otherwise disposed of for cash (other than interest received with respect permitted to any such non-cash consideration), then such conversion or disposition be consummated under this paragraph 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. The Company may defer subject to the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess provisions of $10.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0 million, shall be applied as required pursuant to this Section 4.10(b))two preceding paragraphs. 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 4.10 covenant, and shall comply with the provisions of this Section 4.10 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 4.10.
(c) Notwithstanding Sections 4.10(a) and (b)covenant. Notice of a Net Proceeds Offer shall be mailed, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes Replacement Assets; and
(2) such Asset Sale is for fair market value; provided that any consideration not constituting Replacement Assets received by first-class mail, by the Company or any to Holders of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall constitute Net Cash Proceeds subject to the provisions of Sections 4.10(a) and (b). The provisions of this Section 4.10 shall Securities at their last registered address not apply to transactions undertaken pursuant to an Inversion Transaction; provided that (i) the Supplemental Indenture is executed and in effect concurrently with the consummation of such Inversion Transaction; (ii) immediately following such Inversion Transaction, the Company shall apply to S&P and ▇▇▇▇▇’▇ to have its debt rating and outlook updated and such updated debt rating and outlook shall be no less favorable to the Company than immediately prior to such Inversion Transaction; (iii) immediately following such Inversion Transaction, the Company’s Consolidated Fixed Charge Coverage Ratio is at least equal to the Consolidated Fixed Charge Coverage Ratio immediately prior to such Inversion Transaction; and (iv) immediately following such Inversion Transaction, the Company is able to incur at least $1.00 of additional Indebtedness (other 30 days nor more than Permitted Indebtedness) in compliance with Section 4.03. Each Net Proceeds Offer will be mailed to the record Holders as shown on the register of Holders within 25 60 days following the Net Proceeds Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. The notice to the Holders shall contain all instructions and materials necessary to enable such Holders to tender Notes Securities pursuant to the Net Proceeds Offer. Such notice Offer and shall statestate the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this Section 4.10 and 4.16, that (subject to the provisions hereof) all Notes 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 Company shall select the Securities to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Securities in denominations of $1,000 or multiples thereof shall be 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 purchase price (including the amount of accrued interest) and the purchase date Net Proceeds Offer Payment Date (which shall be not less than 30 nor more than 45 days following the applicable Net Proceeds Offer Payment DateTrigger Date and which shall be at least five Business Days after the Trustee receives notice thereof from the Company);
(3) that any Note Security not tendered will continue to accrue interest if interest is then accruinginterest;
(4) that, unless the Company defaults in making payment therefor, any Note 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 Note Security purchased pursuant to a Net Proceeds Offer will be required to surrender the NoteSecurity, with the form entitled “"Option of Holder to Elect Purchase” " on the reverse of the Note Secu- rity completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third business day 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 5:00 p.m., New York City time, on the second Business Day preceding 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 Notes the Securities such Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note 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 circumstances and relevant facts regarding such Net Proceeds Offer. Upon receiving notice unpurchased portion of the Net Proceeds OfferSecurities surrendered; provided, Holders may elect to tender their Notes however, that each Security purchased and each new Security issued shall be in whole an original principal amount of $1,000 or in part in integral multiples of $1000 in exchange for cashthereof. To the extent Holders properly tender Notes and holders of Pari Passu Indebtedness properly tender such Pari Passu Indebtedness in an amount exceeding On or before the Net Proceeds Offer AmountPayment Date, the Company shall (i) accept for payment Securities or portions thereof tendered Notes and Pari Passu Indebredness will be purchased on a pro rata basis (based on amounts tendered) in an aggregate amount equal pursuant to the Net Proceeds Offer Amount 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 stating the Securities or portions thereof being purchased by the Company. A 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 shall remain open for a period of 20 business days or such longer period as may be required returned 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 Trustee to the extent such laws and regulations are applicable in connection with Company. If an offer is made to repurchase the repurchase of Notes 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 thisthis Section 4.16, the Company shall comply with the applicable securities laws and obligations and shall not be deemed to have breached its obligations hereunder by virtue thereof.
Appears in 1 contract
Sources: Indenture (Autotote Corp)