Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of any Senior Debt of the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 2 contracts
Samples: Indenture (L-3 Communications SPD Technologies Inc), Southern California Microwave Inc
Asset Sales. The Company Partnership shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless: (ia) the Company Partnership (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of; (b) such fair market value is determined by the Partnership’s Board of Directors and evidenced by a resolution of the Board of Directors as set forth in an Officers’ Certificate delivered to the Trustee; and (iic) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of any Senior Debt of the Company Partnership or such Restricted Subsidiary that is assumed by in the transferee in any such transaction form of cash. For purposes of this provision and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all not for purposes of the assets definition of one or more Similar Businesses“Net Proceeds” (except to the extent set forth in such definition with respect to the conversion of non-cash proceeds to cash), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities each of the following shall be deemed to be cash: (x) any liabilities (as shown on the Partnership’s or such Restricted Subsidiary’s most recent balance sheet) of the Partnership or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Restricted Subsidiary’s Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Partnership or such Restricted Subsidiary from further liability; and (y) any securities, Notes or other obligations received by the Partnership or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Partnership or such Restricted Subsidiary into cash for purposes (to the extent of this provisionthe cash received in that conversion). Within 365 270 days after the receipt of any Net Proceeds from an Asset Sale, the Company Partnership or the Restricted Subsidiary may apply such Net Proceeds, at its option, (i) Proceeds to repay Indebtedness under a Credit Facility, or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of make a capital expenditure expenditure, improve real property or the acquisition of other acquire long-term assets that are used or useful in a Similar Businessline of business permitted under Section 4.14 hereof; provided, however, that the Partnership or the Restricted Subsidiary, as the case may be, grants to the Trustee, on behalf of the Holders of the Notes a first priority perfected security interest, subject to Permitted Liens, on any such property or assets acquired or constructed with the Net Proceeds of any Asset Sale on the terms set forth herein. Pending the final application of any such Net Proceeds, the Company Partnership or the applicable Restricted Subsidiary may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this IndentureCash Equivalents held in an account in which the Trustee shall have a first priority perfected security interest, subject to Permitted Liens, for the benefit of the Holders of the Notes. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this preceding paragraph shall be deemed to will constitute "“Excess Proceeds". When .” Within ten days following the date that the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall Partnership will make an offer to all holders of 1997 Notes (an "“Asset Sale Offer"”) to all Holders of Notes to purchase the maximum principal amount of 1997 Notes that may be purchased out of the Excess Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest Interest to the date of purchase, and will be payable in accordance with the procedures set forth in the 1997 Indenturecash. To the extent that the aggregate amount If any Excess Proceeds remain after consummation of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 millionOffer, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company Issuers may use any Remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture and the Collateral Documents. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof tendered pursuant to such Asset Sale Offer exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basisin the manner described under Section 3.02 hereof. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 2 contracts
Samples: Indenture (NGA Holdco, LLC), Investment Agreement (Shreveport Capital Corp)
Asset Sales. (i) The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an engage in any Asset Sale unless (ix) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of any Senior Debt of the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as Subsidiary for such Asset Sale is not less than the case may be, that consists of (1) all or substantially all fair market value of the assets sold evidenced by a resolution of one or more Similar Businesses, (2) other long-term assets that are used or useful the board of directors of such entity set forth in one or more Similar Businesses an Officers' Certificate delivered to the Holders and (3y) Permitted Securities shall be deemed to be the consideration received by the Company or the relevant Restricted Subsidiary in respect of such Asset Sale consists of at least 75% cash or Cash Equivalents (for purposes of this provision. Within 365 days after clause (y), cash and Cash Equivalents includes (A) any liabilities (as reflected in the receipt Company's consolidated 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) that are assumed by any transferee of any Net Proceeds from an such assets or other property in such Asset Sale, and where the Company may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets relevant Restricted Subsidiary is released from any further liability in a Similar Business. Pending the final application of any connection therewith with respect to such Net Proceedsliabilities, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) any securities, notes or other similar obligations received by the Remaining Excess Proceeds Company or any such Restricted Subsidiary from any subsequent such transferee that are converted within 180 days of the consummation of the related Asset Sale Offers exceeds $3.0 million, by the Company will be required or such Restricted Subsidiary into cash and Cash Equivalents (to make an offer to all Holders the extent of Notes the net cash proceeds or the Cash Equivalents (net of related costs) received upon such conversion) and (C) any other Indebtedness that ranks pari passu with the Notes that, Designated Noncash Consideration received by its terms, requires the Company to offer to repurchase or any such Indebtedness with such Remaining Excess Proceeds (a "Secondary Restricted Subsidiary in the Asset Sale Offer") to purchase having an aggregate fair market value, as determined by the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% Board of the principal amount thereof plus accrued and unpaid interest thereonCompany, if any, to the date of purchase, in accordance taken together with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered all other Designated Noncash Consideration received pursuant to a Secondary Asset Sale Offer this clause that is less than at that time outstanding, not to exceed the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.greater of:
Appears in 2 contracts
Samples: Registration Rights Agreement (Jw Childs Equity Partners Ii Lp), Registration Rights Agreement (Signal Medical Services)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and of; (ii) the fair market value is determined by (a) an executive officer of the Company if the value is less than $20.0 million and evidenced by an Officers’ Certificate delivered to the Trustee or (b) the Company’s Board of Directors if the value is $20.0 million or more and evidenced by a resolution of such Board of Directors delivered to the Trustee; and (iii) at least 8075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents or any combination thereof. For purposes of this Section 4.10 each of the following shall be deemed to be cash: (a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability and (b) any securities, notes or other obligations received by the Company or such Restricted Subsidiary, as the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, Subsidiary from such transferee that (A) the amount of any Senior Debt of are converted by the Company or such Restricted Subsidiary that is assumed by into cash or Cash Equivalents within 180 days following the transferee in any closing of such transaction and (B) any consideration received by Asset Sale, to the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all extent of the assets of one cash or more Similar Businesses, (2) other long-term assets Cash Equivalents received in that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provisionconversion. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, Proceeds at its option, option (i) to repay repay, repurchase, redeem, defease or otherwise acquire or retire Senior Debt of the Company or any Indebtedness under of a Credit Facility, or Restricted Subsidiary; (ii) to the acquisition of Permitted Securities, acquire all or substantially all of the assets of one or more Similar Businessesof, or a majority of the making of Voting Stock of, another Permitted Business; (iii) to make a capital expenditure in a Permitted Business; or the acquisition of (iv) to acquire other long-term assets that are used or useful in a Similar Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this preceding paragraph shall be deemed to will constitute "“Excess Proceeds". .” When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 25.0 million, the Company will be required to make an offer (an “Asset Sale Offer”) to all Holders and to the extent required, to all holders of Notes and any other Indebtedness of the Company that ranks is pari passu with the Notes thatcontaining provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes (in integral multiples of $1,000) and such other pari passu Indebtedness of the Company that may be purchased out of such Remaining the Excess Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof of Notes and other pari passu Indebtedness to be purchased or the lesser amount required under agreements governing such other pari passu Indebtedness, plus accrued and unpaid interest thereonand Additional Interest, if any, to the date of purchase, and will be payable in accordance with the procedures set forth in this Indenturecash. To the extent that the aggregate amount If any Excess Proceeds remain after consummation of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess ProceedsOffer, the Company may use any Remaining those Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes or and other pari passu Indebtedness surrendered by Holders thereof tendered into such Asset Sale Offer exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisbasis (or, in the case of Notes issued in global form as discussed under Section 2.03 hereof, based on a method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law). Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds shall will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this covenant by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Parker Drilling Co /De/), Parker Drilling Co /De/
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, that (A) the amount of (x) any Senior Debt 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 pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed from further liability and (y) any securities, notes or other obligations received by the transferee in Company or any such transaction and (B) any consideration received Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary, as the case may be, that consists of Subsidiary into cash (1) all or substantially all to extent of the assets cash received) within 180 days following the closing of one or more Similar Businessessuch Asset Sale, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or its Restricted Subsidiaries may apply such Net Proceeds, at its option, (ia) to repay Indebtedness under a Credit FacilitySenior Debt, or (iib) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businessesinvestment in, or the making of a capital expenditure or the acquisition of other long-term assets assets, in each case used or useable in a Similar Permitted Business, from a party other than the Company or a Restricted Subsidiary, or (c) the acquisition of Capital Stock of any Person primarily engaged in a Permitted Business if, as a result of the acquisition by the Company or any Restricted Subsidiary thereof, such Person becomes a Restricted Subsidiary, or (d) a combination of the uses described in clauses (a), (b) and (c). Pending the final application of any such Net Proceeds, the Company or its Restricted Subsidiaries may temporarily reduce Indebtedness under a Credit Facility Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 7.5 million, the Company shall will be required to make an offer to all Holders of Notes and, to the extent required by the terms of any Pari Passu Indebtedness to all holders of 1997 Notes such Pari Passu Indebtedness (an "Asset Sale Offer") ), to purchase repurchase the maximum principal amount of 1997 Notes and any such Pari Passu Indebtedness 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 unpaid interest and Liquidated Damages, if any, thereon to the date of purchaserepurchase, in accordance with the procedures set forth in the 1997 IndentureSection 3.09 hereof or such Pari Passu Indebtedness, as applicable. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining any Excess Proceeds ("Remaining Excess Proceeds") and remain after consummation of the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes or pari passu and any such Pari Passu Indebtedness surrendered by Holders thereof tendered pursuant to an Asset Sale Offer exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased repurchased on a pro rata basis. Upon completion of such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 2 contracts
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale (excluding for this purpose an Event of Loss) unless (ia) the Company (or the 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 (evidenced by as determined in accordance with the definition of such term, the results of which determination shall be set forth in an Officers' ’ Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets properties, assets, rights or Equity Interests issued or sold or otherwise disposed of and (iib) at least 8075% of the aggregate consideration therefor received by the Company and its Restricted Subsidiaries from such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is in the form of cash or Cash Equivalents; provided, however, that the amount of (i) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets, properties, rights or Equity Interests pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (ii) Liquid Securities and (iii) any securities, notes or other obligations received by the Company or such Restricted Subsidiary, as the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, Subsidiary from such transferee that (A) the amount of any Senior Debt of are converted within 180 days by the Company or such Restricted Subsidiary that is assumed by into cash (to the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businesses, (2cash received in that conversion) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall each be deemed to be cash Cash Equivalents for purposes of this provisionSection 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset SaleSale (including, without limitation, any Event of Loss), the Company or any such Restricted Subsidiary may apply such Net ProceedsProceeds to (a) permanently repay Senior Debt or (b) acquire (including by way of a purchase or construction of assets or purchase of Capital Stock, at its optionmerger, (iconsolidation or otherwise) Productive Assets, provided that if the Company or such Restricted Subsidiary has entered into a binding agreement to repay Indebtedness acquire such Productive Assets within such 365-day period, but the consummation of the transactions under a Credit Facilitysuch agreement has not occurred within such 365-day period, and the agreement has not been terminated, then the 365-day period will be extended to 18 months to permit such consummation; provided, however, if such consummation does not occur, or (ii) such agreement is terminated within such 18-month period, then the Company may apply, or cause such Restricted Subsidiary to apply, within 90 days after the acquisition of Permitted Securities, all or substantially all end of the assets of one or more Similar Businesses, 18-month period or the making effective date of a capital expenditure such termination, whichever is earlier, such Net Proceeds as provided in clauses (a) and (b) of this paragraph; and provided, further, that progress payments under contracts for the construction or conversion of vessels shall be deemed to be payments for the acquisition purchase of other long-term assets in a Similar Businessunder this Section 4.10. Pending the final application of any such Net Proceeds, the Company or any Restricted Subsidiary may temporarily reduce Indebtedness outstanding revolving credit borrowings, including borrowings under a the Credit Facility Facility, or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence clauses (a) and (b) of this paragraph shall be deemed to constitute "“Excess Proceeds". When .” Within 30 days of each date on which the aggregate amount of Excess Proceeds exceeds $10.0 million20,000,000, the Company shall make commence an offer to all holders of 1997 Notes (an "Asset Sale Offer") Offer pursuant to Section 3.09 hereof to purchase the maximum principal amount of 1997 Notes that may be purchased out of the Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereoninterest, if any, thereon, to the date of purchase, in accordance with the procedures set forth in this IndentureSection 3.09 hereof; provided, however, that, if the Company is required to apply such Excess Proceeds to purchase, or to offer to purchase, any Pari Passu Indebtedness, the Company shall only be required to offer to purchase the maximum principal amount of Notes that may be purchased out of the amount of such Excess Proceeds multiplied by a fraction, the numerator of which is the aggregate principal amount of Notes outstanding and the denominator of which is the aggregate principal amount of Notes outstanding plus the aggregate principal amount of Pari Passu Indebtedness outstanding. To the extent that the aggregate principal amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess Proceedsamount that the Company is required to purchase, the Company or any Restricted Subsidiary may use any Remaining remaining Excess Proceeds for general corporate purposespurposes in any manner not prohibited by this Indenture. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, that the Company shall repurchase such Indebtedness on a pro rata basis and is required to purchase, the Trustee shall select the Notes to be purchased on a pro rata basisbasis (or, in the case of Notes in global form, the Trustee will select Notes for repurchase based on the method of the Depository that most nearly approximates a pro rata selection), in any case with such adjustments as may be deemed appropriate by the Trustee so that only Notes in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof, shall be purchased. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or suffer to exist any agreement (other than any agreement governing the Credit Facility) that would place any restriction of any kind (other than pursuant to law or regulation) on the ability of the Company to make an Asset Sale Offer.
Appears in 2 contracts
Samples: Indenture (Hornbeck Offshore Services Inc /La), Indenture (Hornbeck Offshore Services Inc /La)
Asset Sales. (a) The Company shall Authority will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless: (i) the Company Authority (or the 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 (as determined in the good faith, reasonable judgment of the Management Board, as evidenced by a resolution set forth in an Officers' Officer’s Certificate delivered to the Trustee which will include each Purchaser and holder of a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionNote) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) except in the case of a Permitted Asset Swap, at least 8075% of the consideration therefor received by the Company Authority or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, that the Authority will not be permitted to make any Asset Sale of Key Project Assets. For purposes of this provision, each of the following shall be deemed to be cash: (A) any liabilities that would appear on the amount Authority’s or such Restricted Subsidiary’s balance sheet prepared in accordance with GAAP (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by the transferee of any Senior Debt of such assets pursuant to a customary novation agreement that releases the Company Authority or such Restricted Subsidiary that is assumed by the transferee in any such transaction from further liability; and (B) any consideration securities, notes or other obligations received by the Company Authority or any such Restricted Subsidiary from such transferee that are converted by the Authority or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets cash received) within 30 days of one or more Similar Businesses, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zerothereof.
Appears in 2 contracts
Samples: Guarantee Agreement (Mohegan Tribal Gaming Authority), Facility Agreement (Mohegan Tribal Gaming Authority)
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries toto (i) sell, consummate lease, convey or otherwise dispose of any assets (including, without limitation, by way of a sale and leaseback) other than sales of inventory in the ordinary course of business consistent with past practices (provided, that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole shall be governed by the provisions of Section 7.1 and/or 8.11 hereof and not by the provisions of this Section 8.5) or (ii) issue or sell Equity Interests of any of the Company’s Subsidiaries, in the case of either clause (i) or (ii), whether in a single transaction or a series of related transactions (A) that have a fair market value in excess of $1,000,000 or (B) for Net Proceeds in excess of $1,000,000 (each of the foregoing, an “Asset Sale Sale”), unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect set forth in an officers’ certificate delivered to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionHolders) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, that the amount of (A) any liabilities (as shown on the amount of any Senior Debt Company’s or such Subsidiary’s most recent balance sheet) of the Company or such Restricted any Subsidiary (other than contingent liabilities and liabilities that is are by their terms subordinated to the Notes) that are assumed by the transferee in of any such transaction assets pursuant to any arrangement releasing the Company or such Subsidiary from further liability and (B) any consideration notes or other obligations received by the Company or any such Restricted Subsidiary, as Subsidiary from such transferee that are immediately converted by the case may be, that consists of Company or such Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after Notwithstanding the receipt of any Net Proceeds from an foregoing, Asset Sale, the Company may apply such Net Proceeds, at its option, Sales shall not be deemed to include (i) a transfer of assets by the Company to repay Indebtedness under a Credit FacilityWholly Owned Subsidiary, or by a Wholly Owned Subsidiary of the Company to the Company or to another Wholly Owned Subsidiary, (ii) the issuance of Equity Interests by a Wholly Owned Subsidiary to the acquisition Company or to a Wholly Owned Subsidiary, (iii) a Restricted Payment or Permitted Investment that is permitted by the provisions of Section 8.2 hereof, (iv) the creation of Permitted Securities, all Liens and the disposition of assets subject to such Liens by or substantially all on behalf of the assets of one or more Similar BusinessesPerson holding such Liens, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (Bv) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders sale of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered accounts receivable pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use Qualified Receivables Transaction and (vi) any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount disposition of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zeroCash Equivalents.
Appears in 2 contracts
Samples: Exchange Agreement (Check Mart of New Mexico Inc), Exchange Agreement (Check Mart of New Mexico Inc)
Asset Sales. The Company Anvil shall not, and shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale in excess of $1.0 million unless (i) the Company Anvil (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value value, and in the event such Asset Sale involves aggregate consideration in excess case of $5.0 million) a lease of assets, a lease providing for rent and other conditions which are no less favorable to Anvil (or the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that ) in any material respect than the then prevailing market conditions (A) the amount of any Senior Debt evidenced in each case by a resolution of the Company Board of Directors of such entity set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests sold or otherwise disposed of, and (ii) at least 75% (100% in the case of lease payments) of the consideration therefor received by Anvil or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that is the amount of (x) any liabilities (as shown on Anvil's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto, excluding contingent liabilities and trade payables), of Anvil or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Senior Notes, or any guarantee thereof) that are assumed by the transferee in of any such transaction assets and (By) any consideration notes or other obligations received by the Company Anvil or any such Restricted Subsidiary from such transferee that are promptly, but in no event more than 30 days after receipt, converted by Anvil or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company Anvil may apply such Net Proceeds, at its optionProceeds (a) to reduce permanently long-term Indebtedness of a Restricted Subsidiary, (ib) to repay reduce permanently Indebtedness (and, in the case of revolving Indebtedness, to reduce permanently the commitments) under a the New Credit FacilityAgreement, or (iic) to the acquisition of Permitted Securitiesan investment in another business, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets tangible assets, in each case, in the same or a Similar Business. Pending similar line of business as Anvil was engaged in on the final application date of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first preceding sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When ." On the earlier of (i) the 366th day after an Asset Sale or (ii) such date as the Board of Anvil or the Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale in the manner set forth in (a), (b) or (c), if the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall Anvil will be required to make an offer to all holders Holders of 1997 Senior Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Senior Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, Liquidated Damages thereon to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Senior Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess Proceeds, the Company Anvil may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Senior Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Senior Notes to be purchased on a pro rata basis. Upon completion of such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds shall be reset at zero.. The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the "Asset Sale Offer Period"). No later than five Business Days after the termination of the Asset Sale Offer Period (the "Asset Sale Purchase Date"), Anvil shall purchase the principal amount of Senior Notes required to be purchased pursuant to this covenant (the "Asset Sale Offer Amount") or, if less than the Asset Sale Offer Amount has been tendered, all Senior Notes tendered in response to the Asset Sale Offer. Payment for any Senior Notes so purchased shall be made in the same manner as interest payments are made on the Senior Notes. If the Asset Sale Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Liquidated Damages shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Senior Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, Anvil shall send, by first class mail, a notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Senior Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
Appears in 2 contracts
Samples: Indenture (Anvil Holdings Inc), Indenture (Cottontops Inc)
Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (ia) the Company (or the Restricted Subsidiary, as the case may be) , receives consideration at the time of such that Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of of; and (iib) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of any Senior Debt of the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists form of (1i) all cash or substantially all of the assets of one Cash Equivalents; or more Similar Businesses, (2ii) other long-term property or assets that are used or useful in one a Permitted Business, or more Similar Businesses the Capital Stock of any Person engaged in a Permitted Business if, as a result of the acquisition by the Company or any Restricted Subsidiary thereof, such Person becomes a Restricted Subsidiary; provided that the amount of (x) 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 pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liability; (y) any securities, notes or other obligations received by the Company or the Restricted Subsidiary from the transferee that are converted within 180 days of their receipt by the Company or the Restricted Subsidiary into cash or Cash Equivalents but only to the extent of the cash or Cash Equivalents received; and (3z) Permitted Securities any Designated Noncash Consideration received by the Company or any of its Restricted Subsidiaries in that Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (z) that is at that time outstanding, not to exceed 15% of Total Assets at the time of the receipt of that 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, shall be deemed to be cash for purposes of this provisionSection 4.10; and provided further that the 75% limitation referred to in clause (b) above will not apply to any Asset Sale in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, shall apply such Net Proceeds, at its optionoption (or to the extent the Company is required to apply such Net Proceeds pursuant to the terms of the New Credit Facility), to (a) repay or purchase Senior Indebtedness or Pari Passu Indebtedness of the Company or any Indebtedness of any Restricted Subsidiary, as the case may be, provided that if the Company shall so repay or purchase Pari Passu Indebtedness of the Company, (i) to repay it will equally and ratably reduce Indebtedness under a Credit Facilitythe Notes if the Notes are then redeemable; or, or (ii) to if the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company Notes may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall then be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 millionredeemed, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.an
Appears in 2 contracts
Samples: Indenture (Charles River Laboratories Inc), Indenture (Charles River Laboratories Holdings Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an any Asset Sale unless unless, (i) the Company (or the 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 (evidenced as determined in good faith by the Board of Directors (including as to the value of all noncash consideration) and set forth in an Officers' Officer's Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor is in the form of cash and/or Cash Equivalents, and (iii) the Net Proceeds received by the Company (or such Restricted Subsidiary, as the case may be) from such Asset Sale are applied within 360 days following the receipt of such Net Proceeds (a) first, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) to the amount of any Senior Debt of extent the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be) elects, that consists to the redemption or repurchase of outstanding Indebtedness incurred pursuant to clauses (1d) all or substantially all and (e) of the assets second paragraph of one Section 4.09 hereof and (b) second, to the extent of the balance of such Net Proceeds after application as described in (a) above and to the extent the Company (or more Similar Businessessuch Restricted Subsidiary, as the case may be) elects, to reinvest, or enter into a legally binding agreement to reinvest, such Net Proceeds (2or any portion thereof) other long-term in assets that are used or useful in one or more Similar Businesses and (3) a Permitted Securities shall be deemed to be cash for purposes Business. The balance of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to after the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided described in the first sentence of this paragraph immediately preceding clauses (a) and (b), shall be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds equals or exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes 15.0 million (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes that may be purchased out of the taking into account income earned on such Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million), the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a an "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining the Excess Proceeds, at an offer a purchase price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest thereon, if any, thereon to the date of purchase, in accordance with the procedures set forth in Article 3 of this IndentureIndenture and the agreements governing such pari passu Indebtedness. To the extent that the aggregate amount any Excess Proceeds remain after consummation of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess ProceedsOffer, the Company may use any Remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes or and pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes and pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds shall be reset at zerozero for purposes of the first sentence of this paragraph. The amount of (x) any liabilities (as shown on the Company's (or such Restricted Subsidiary's, as the case may be) 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 pursuant to an agreement that releases the Company or any Restricted Subsidiary from all liability in respect thereof, (y) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale and (z) any securities, notes or other obligations received by the Company (or such Restricted Subsidiary, as the case may be) from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company (or such Restricted Subsidiary, as the case may be) into cash and/or Cash Equivalents (to the extent of the cash and/or Cash Equivalents received), will be deemed to be cash and/or Cash Equivalents for purposes of this provision. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue thereof.
Appears in 2 contracts
Samples: Global Crossing LTD, Global Crossing LTD LDC
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to: (i) sell, consummate lease, convey or otherwise dispose of any assets (including, without limitation, by way of a sale and leaseback) other than sales of inventory and leases (or subleases) of restaurant facilities and related equipment to franchisees, in each case, in the ordinary course of business consistent with past practices (PROVIDED that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Subsidiaries shall be governed by the provisions of Sections 4.14 and 5.01 hereof), or (ii) issue or sell Equity Interests of any of its Subsidiaries, in the case of either clause (i) or (ii), whether in a single transaction or a series of related transactions, (a) that have a fair market value in excess of $1 million or (b) for net proceeds in excess of $1 million (each of the foregoing, an Asset Sale "ASSET SALE"), unless (ix) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (iiy) except in the case of a Permitted Non-Cash Transaction, at least 8075% of the consideration received therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, howeverPROVIDED, that the amount of (A) any liabilities (as shown on the amount 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 Senior Debt of such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction from further liability and (B) any consideration securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. A transfer of assets by the Company to a Wholly-Owned Restricted Subsidiary or by a Wholly-Owned Restricted Subsidiary to the Company or to another Wholly-Owned Restricted Subsidiary, and an issuance of Equity Interests by a Wholly-Owned Restricted Subsidiary to the Company or to another Wholly-Owned Restricted Subsidiary, shall not be deemed to be an Asset Sale. Any Restricted Payment that is permitted by Section 4.07 hereof will not be deemed to be an Asset Sale. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, Proceeds (ia) to repay permanently reduce Indebtedness under a the New Credit FacilityFacility (and to correspondingly reduce commitments with respect thereto), or (iib) to the acquisition of Permitted Securities, all or substantially all a majority of the assets of one or more Similar Businessesof, or a majority of the voting Capital Interests of, another Permitted Business, the making of a capital expenditure or the acquisition of other tangible long-term assets assets, in each case, that are used or useful in a Similar Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from such Asset Sales Sale that are not finally applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". When EXCESS PROCEEDS." Within ten days of each date on which the aggregate amount of Excess Proceeds exceeds $10.0 5 million, the Company Issuers shall make an offer to all holders of 1997 Notes (an "commence a PRO RATA Asset Sale Offer") Offer pursuant to Section 3.09 hereof to purchase the maximum principal amount of 1997 Notes that may be purchased out of the Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof on the date fixed for the closing of such offer plus accrued and unpaid interest to the date of purchaseand Liquidated Damages thereon, in accordance with the procedures set forth in the 1997 Indentureif any. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use such deficiency for any Remaining Excess Proceeds for general corporate purposes. If purpose not otherwise prohibited by the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basisIndenture. Upon completion of such offer to purchase, the amount of Excess Proceeds shall will be deemed to be reset at zero.
Appears in 2 contracts
Samples: Indenture (Restaurant Co), Indenture (Perkins Finance Corp)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an any Asset Sale unless unless, (i) the Company (or the 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 (evidenced as determined in good faith by the Board of Directors (including as to the value of all noncash consideration) and set forth in an Officers' Officer's Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor is in the form of cash and/or Cash Equivalents, and (iii) the Net Proceeds received by the Company (or such Restricted Subsidiary, as the case may be) from such Asset Sale are applied within 360 days following the receipt of such Net Proceeds (a) first, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) to the amount of any Senior Debt of extent the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be) elects, that consists to the redemption or repurchase of (1) all or substantially all outstanding pari passu Indebtedness of the assets Company or Purchase Money Indebtedness of one any Restricted Subsidiary; provided that in the event that such Restricted Subsidiary is a Guarantor, the Purchase Money Indebtedness to be redeemed or more Similar Businessesrepurchased ranks at least pari passu to the Guarantee given by such Restricted Subsidiary, and (2b) other long-term second, to the extent of the balance of such Net Proceeds after application as described in (a) above and to the extent the Company (or such Restricted Subsidiary, as the case may be) elects, to reinvest, or enter into a legally binding agreement to reinvest, such Net Proceeds (or any portion thereof) in assets that are used or useful in one or more Similar Businesses and (3) a Permitted Securities shall be deemed to be cash for purposes Business. The balance of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to after the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided described in the first sentence of this paragraph immediately preceding clauses (a) and (b), shall be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds equals or exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes 15.0 million (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes that may be purchased out of the taking into account income earned on such Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million), the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a an "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining the Excess Proceeds, at an offer a purchase price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest thereon, if any, thereon to the date of purchase, in accordance with the procedures set forth in Article 3 of this IndentureIndenture and the agreements governing such pari passu Indebtedness. To the extent that the aggregate amount any Excess Proceeds remain after consummation of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess ProceedsOffer, the Company may use any Remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes or and pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes and pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds shall be reset at zerozero for purposes of the first sentence of this paragraph. The amount of (x) any liabilities (as shown on the Company's (or such Restricted Subsidiary's, as the case may be) 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 pursuant to an agreement that releases the Company or any Restricted Subsidiary from all liability in respect thereof, (y) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale and (z) any securities, notes or other obligations received by the Company (or such Restricted Subsidiary, as the case may be) from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company (or such Restricted Subsidiary, as the case may be) into cash and/or Cash Equivalents (to the extent of the cash and/or Cash Equivalents received), will be deemed to be cash and/or Cash Equivalents for purposes of this provision. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue thereof.
Appears in 2 contracts
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (ia) the Company (or the 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 (evidenced by as determined in accordance with the definition of such term, the results of which determination shall be set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (iib) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, that (A) the amount of (i) any Senior Debt liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that is are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee in of any such transaction assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability and (Bii) any consideration securities, notes or other obligations received by the Company or such Restricted Subsidiary, as Subsidiary from such transferee that are immediately converted by the case may be, that consists of Company or such Restricted Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businesses, (2cash received) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provisionSection 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any such Restricted Subsidiary may apply such Net ProceedsProceeds to (a) permanently repay the principal of any secured Indebtedness (to the extent of the fair value of the assets securing such Indebtedness, at its option, as determined by the Board of Directors) or (ib) to repay Indebtedness under acquire (including by way of a Credit Facilitypurchase of assets or stock, merger, consolidation or otherwise) Productive Assets. (ii) Any such Net Proceeds that are applied to the acquisition of Permitted Securities, all or substantially all Productive Assets pursuant to any binding agreement to construct any new marine vessel useful in the business of the assets Company or any of one or more Similar Businesses, or its Restricted Subsidiaries shall be deemed to have been applied for such purpose within such 365-day period so long as they are so applied within 18 months of the making effective date of a capital expenditure or such agreement but no later than two years after the acquisition date of other long-term assets in a Similar Business. receipt of such Net Proceeds.) Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce Indebtedness outstanding revolving credit borrowings, including borrowings under a the Credit Facility Facility, or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture, the Series A/B Indenture, the Series D Indenture and the Series F Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When ." Within 30 days of each date on which the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall make an offer to all holders of 1997 Notes (an "commence a pro rata Asset Sale Offer") Offer pursuant to Section 3.09 hereof to purchase the maximum principal amount of 1997 Notes that may be purchased out of the Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereoninterest, if any, thereon, to the date of purchase, in accordance with the procedures set forth in this IndentureSection 3.09 hereof; provided, however, that, if the Company is required to apply such Excess Proceeds to repurchase, or to offer to repurchase, any Pari Passu Indebtedness, the Company shall only be required to offer to repurchase the maximum principal amount of Notes that may be purchased out of the amount of such Excess Proceeds multiplied by a fraction, the numerator of which is the aggregate principal amount of Notes outstanding and the denominator of which is the aggregate principal amount of Notes outstanding plus the aggregate principal amount of Pari Passu Indebtedness outstanding. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess Proceedsamount that the Company is required to repurchase, the Company may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, that the Company shall repurchase such Indebtedness on a pro rata basis and is required to repurchase, the Trustee shall select the Notes to be purchased on a pro rata basisbasis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased). Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. For purposes of this paragraph only, any reference herein to "Notes" shall be deemed to include the Notes and the Series A/B Notes, the Series D Notes and the Series F Notes.
Appears in 2 contracts
Samples: Trico Marine Services (Saevik Shipping As), Trico Marine Services (Trico Marine Services Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, PROVIDED that (A) the amount of (x) any Senior Debt 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 pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed from further liability and (y) any securities, notes or other obligations received by the transferee in Company or any such transaction and (B) any consideration received Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary, as Subsidiary into cash within 90 days (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (ia) to permanently repay Indebtedness under a Credit FacilitySenior Debt (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or existing 2003 Notes, or (iib) to the acquisition of Permitted Securitiesa controlling interest in another business, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets assets, in each case, in a Similar Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce the revolving Indebtedness under a the Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". EXCESS PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall will be required to make an offer to all holders Holders of 1997 Notes (an "Asset Sale OfferASSET SALE OFFER") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this IndentureSection 3.09 hereof. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata PRO RATA basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 2 contracts
Samples: Musicland Group Inc /De, Musicland Stores Corp
Asset Sales. The Company Term Agent agrees, on behalf of itself and the Term Secured Parties, that it will not oppose any sale consented to by the ABL Agent of any ABL Priority Collateral pursuant to Section 363(f) of the Bankruptcy Code (or any similar provision under the law applicable to any Insolvency Proceeding or under a court order in respect of measures granted with similar effect under any foreign Debtor Relief Laws) so long as the Term 39 Form of J. Crew Intercreditor Agreement Agent, for the benefit of the Term Secured Parties, shall notretain a Lien on the proceeds of such sale (to the extent such proceeds are not applied to the ABL Obligations in accordance with Section 4.1(b)). The ABL Agent agrees, on behalf of itself and shall the ABL Secured Parties, that it will not permit oppose any sale consented to by the Term Agent of its Restricted Subsidiaries to, consummate an Asset Sale unless any Term Priority Collateral pursuant to Section 363(f) of the Bankruptcy Code (or any similar provision under the law applicable to any Insolvency Proceeding or under a court order in respect of measures granted with similar effect under any foreign Debtor Relief Laws) so long as (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of any such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors sale is made in accordance with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of Section 3.6 and (ii) at least 80% the ABL Agent, for the benefit of the consideration therefor received by ABL Secured Parties, shall retain a Lien on the Company or proceeds of such Restricted Subsidiary, as the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that sale (A) the amount of any Senior Debt of the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any extent such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that proceeds are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, Term Obligations in accordance with Section 4.1(c)). If such sale of Collateral includes both ABL Priority Collateral and Term Priority Collateral and the procedures Parties are unable after negotiating in good faith to agree on the allocation of the purchase price between the ABL Priority Collateral and Term Priority Collateral, either Party may apply to the court in such Insolvency Proceeding to make a determination of such allocation, and the court’s determination shall be binding upon the Parties. For the avoidance of doubt, the Term Agent, on behalf of itself and the Term Secured Parties, acknowledges and agrees that in connection with any of the matters described in the foregoing Sections 6.1, 6.2 or 6.3 or in this Section 6.4, the rights of each Term Secured Party that is an ABL Secured Party but not an ABL Lender, in such Term Secured Party’s capacity as an ABL Secured Party, are subject to, and limited as set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds"in, Section 11.13(b) and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zeroABL Credit Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Chinos Holdings, Inc.), Credit Agreement (J Crew Group Inc)
Asset Sales. The Company Lessee shall not, and shall not permit any of its the Restricted Subsidiaries to, consummate an Asset Sale unless (i) sell, lease, convey or otherwise dispose of any assets (including by way of a sale-and-leaseback) other than sales of inventory in the Company ordinary course of business consistent with past practice (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of Lessee shall be governed by the provisions of Section 5.19 hereof and not by the provisions of this Section 5.18), or (ii) issue or sell Equity Interests of any of its Subsidiaries, in the case of either clause (i) or (ii) above, whether in a single transaction or a series of related transactions, (A) that have a fair market value in excess of the lesser of $10,000,000 or the amount (which amount is equal to $5,000,000 as of the Effective Date) specified in Section 4.10 of the 1996 Indenture as amended from time to time (such lesser amount, the "Applicable Amount"), or (B) for net proceeds in excess of the "Applicable Amount" (each of the foregoing, an "Asset Sale"), unless (X) Lessee (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board board of Directors with respect directors of the General Partner (and, if applicable, the audit committee of such board of directors) set forth in a certificate signed by a Responsible Officer and delivered to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionAgent) of the assets or Equity Interests issued or sold or otherwise disposed of and (iiY) at least 80% of the consideration therefor received by the Company Lessee or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of (1) any Senior Debt of the Company liabilities (as shown on Lessee's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto), of Lessee or any Subsidiary (other than liabilities that is are by their terms subordinated in right of payment to the Obligations hereunder and under the other Operative Documents) that are assumed by the transferee in of any such transaction assets and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) any notes or other long-term assets obligations received by Lessee or any such Subsidiary from such transferee that are used immediately converted by Lessee or useful in one or more Similar Businesses and such Subsidiary into cash (3) Permitted Securities to the extent of the cash received), shall be deemed to be cash for purposes of this provision. Within 365 days after ; and provided, further, that the receipt of 80% limitation referred to in this clause (Y) shall not apply to any Net Proceeds from an Asset Sale, Sale in which the Company may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to the acquisition of Permitted Securities, all or substantially all cash portion of the assets of one or more Similar Businessesconsideration received therefrom, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, determined in accordance with the procedures set forth foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (w) sales or transfers of accounts receivable by Lessee to an SPE and by an SPE to any other Person in the 1997 Indenture. To the extent connection with any Accounts Receivable Securitization permitted by Section 5.21 (provided that the aggregate amount of 1997 Notes tendered pursuant such accounts receivable that shall have been transferred to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from held by all SPEs at any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100time shall not exceed 133% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes Accounts Receivable Securitizations permitted to be outstanding under Section 5.21), (x) any transfer of assets by Lessee or pari passu Indebtedness tendered any of its Subsidiaries to Lessee or a Restricted Subsidiary, (y) any transfer of assets by Lessee or any of its Subsidiaries to any Person in exchange for other assets used in a line of business permitted under Section 5.31 and having a fair market value not less than that of the assets so transferred and (z) any transfer of assets pursuant to a Secondary Asset Sale Offer is less than Permitted Lessee Investment or any sale-leaseback (including sale-leasebacks involving Synthetic Leases) permitted by Section 5.33. Notwithstanding the Remaining Excess Proceedsforegoing, Lessee may not sell, lease, convey or otherwise dispose of any Unit except as permitted by the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zeroLease.
Appears in 2 contracts
Samples: Agreement (Ferrellgas Partners Finance Corp), Agreement (Ferrellgas Partners Finance Corp)
Asset Sales. (a) The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) 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 (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of (as determined reasonably and in good faith by the Company's Board of Directors), (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of any Senior Debt of the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists from such Asset Sale shall be in the form of (1) all cash or substantially all Cash Equivalents and is received at the time of the assets of one or more Similar Businesses, (2) other long-term assets that are used or useful in one or more Similar Businesses such disposition and (3iii) Permitted Securities shall be deemed to be cash for purposes upon the consummation of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply applies, or causes such Restricted Subsidiary to apply, the Net ProceedsCash Proceeds relating to such Asset Sale within 270 days of receipt thereof either (A) to prepay any Senior Debt or Guarantor Senior Debt (and, at its optionin the case of Senior Debt or Guarantor Senior Debt under any revolving credit facility, including the Credit Agreement, effect a corresponding permanent reduction in the availability under such revolving credit facility), (iB) to repay Indebtedness under a Credit Facilityreinvest in Productive Assets, or (iiC) to a combination of prepayment and investment permitted by the acquisition foregoing clauses (iii)(A) and (iii)(B). On the 271st day after an Asset Sale or such earlier date, if any, as the Board of Permitted Securities, all or substantially all Directors of the assets Company or of one such Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to such Asset Sale as set forth in clauses (iii)(A), (iii)(B) or more Similar Businesses(iii)(C) of the preceding sentence (each, a "Net Proceeds Offer Trigger Date"), such aggregate amount of Net Cash Proceeds which have not been applied on or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest before such Net Proceeds Offer Trigger Date as permitted in any manner that is not prohibited by this Indenture. Any such clauses (iii)(A), (iii)(B) and (iii)(C) (each a "Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph Offer Amount") shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, applied by the Company shall or such Restricted Subsidiary, as the case may be, to make an offer to all holders of 1997 Notes purchase (an the "Asset Sale Net Proceeds Offer") on a date (the "Net Proceeds Offer Payment Date") not less than 20 Business Days nor more than 30 Business Days following the date on which the notice of such Net Proceeds Offer is mailed to purchase the maximum Holders, from all Holders on a PRO RATA basis, that principal amount of 1997 Notes that may be purchased out of Senior Subordinated Securities equal to the Excess Proceeds, Net Proceeds Offer Amount at an offer a price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof Senior Subordinated 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 4.06. Notwithstanding the procedures set forth foregoing, the Company may defer the Net Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $5.0 million resulting from one or more Asset Sales (at which time, the entire unutilized Net Proceeds Offer Amount, and not just the amount in excess of $5.0 million, shall be applied as required pursuant to this Indentureparagraph). Upon completion of a Net Proceeds Offer, the amount of Net Cash Proceeds and the amount of aggregate unutilized Net Proceeds Offer Amount will be reset to zero. To the extent that any Net Proceeds remain after the aggregate amount consummation of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Net Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase or any Restricted Subsidiary of the Company, as the case may be, may use such Indebtedness on a pro rata basis and Net Proceeds for any purposes not prohibited by this Indenture. Notwithstanding the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion provisions of such offer to purchasethis Section 4.06(a), the amount Company shall not make a Net Proceeds Offer if the Company is prohibited from doing so under the terms of Excess Proceeds the Credit Agreement, PROVIDED that the Company's failure to comply with the covenant in this Section 4.06(a) shall be reset at zeroconstitute an Event of Default described in clause (b) under Section 6.01.
Appears in 2 contracts
Samples: Indenture (Cadmus Communications Corp/New), Indenture (Cadmus Communications Corp/New)
Asset Sales. The Company Lessee shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) sell, lease, convey or otherwise dispose of any assets (including by way of a sale-and-leaseback) other than sales of inventory in the Company ordinary course of business consistent with past practice (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of Lessee shall be governed by the provisions of Section 5.19 hereof and not by the provisions of this Section 5.18), or (ii) issue or sell Equity Interests of any of its Subsidiaries, in the case of either clause (i) or (ii) above, whether in a single transaction or a series of related transactions, (A) that have a fair market value in excess of $5,000,000, or (B) for net proceeds in excess of $5,000,000 (each of the foregoing, an "Asset Sale"), unless (X) Lessee (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board board of Directors with respect directors of the General Partner (and, if applicable, the audit committee of such board of directors) set forth in a certificate signed by a Responsible Officer and delivered to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionAgent) of the assets or Equity Interests issued or sold or otherwise disposed of and (iiY) at least 80% of the consideration therefor received by the Company Lessee or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of (1) any Senior Debt of the Company liabilities (as shown on Lessee's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto), of Lessee or any Subsidiary (other than liabilities that is are by their terms subordinated in right of payment to the Obligations hereunder and under the other Operative Documents) that are assumed by the transferee in of any such transaction assets and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) any notes or other long-term assets obligations received by Lessee or any such Subsidiary from such transferee that are used immediately converted by Lessee or useful in one or more Similar Businesses and such Subsidiary into cash (3) Permitted Securities to the extent of the cash received), shall be deemed to be cash for purposes of this provision. Within 365 days after ; and provided, further, that the receipt of 80% limitation referred to in this clause (Y) shall not apply to any Net Proceeds from an Asset Sale, Sale in which the Company may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to the acquisition of Permitted Securities, all or substantially all cash portion of the assets of one or more Similar Businessesconsideration received therefrom, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, determined in accordance with the procedures set forth foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (w) sales or transfers of accounts receivable by Lessee to an SPE and by an SPE to any other Person in the 1997 Indenture. To the extent connection with any Accounts Receivable Securitization permitted by Section 5.21 (provided that the aggregate amount of 1997 Notes tendered pursuant such accounts receivable that shall have been transferred to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from held by all SPEs at any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100time shall not exceed 133% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes Accounts Receivable Securitizations permitted to be outstanding under Section 5.21), (x) any transfer of assets by Lessee or pari passu Indebtedness tendered any of its Subsidiaries to a Subsidiary of Lessee that is a Guarantor under the Credit Agreement, (y) any transfer of assets by Lessee or any of its Subsidiaries to any Person in exchange for other assets used in a line of business permitted under Section 5.31 and having a fair market value not less than that of the assets so transferred and (z) any transfer of assets pursuant to a Secondary Asset Sale Offer is less than Permitted Lessee Investment or any sale-leaseback (including sale-leasebacks involving Synthetic Leases) permitted by Section 5.33. Notwithstanding the Remaining Excess Proceedsforegoing, Lessee may not sell, lease, convey or otherwise dispose of any Unit except as permitted by the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zeroLease.
Appears in 2 contracts
Samples: Participation Agreement (Ferrellgas Partners Finance Corp), Participation Agreement (Ferrellgas Partners Finance Corp)
Asset Sales. The Company Holdings shall not, and shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale in excess of $2.0 million unless (i) the Company Holdings (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value value, and in the event such Asset Sale involves aggregate consideration in excess case of $5.0 million) a lease of assets, a lease providing for rent and other conditions which are no less favorable to Holdings (or the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that ) in any material respect than the then prevailing market conditions (A) the amount of any Senior Debt evidenced in each case by a resolution of the Company Board of Directors of such entity set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests sold or otherwise disposed of, and (ii) at least 75% (100% in the case of lease payments) of the consideration therefor received by Holdings or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that is the amount of (x) any liabilities (as shown on Holdings' or such Restricted Subsidiary's most recent balance sheet or in the notes thereto, excluding contingent liabilities and trade payables), of Holdings or any Restricted Subsidiary (other than liabilities that are by their terms subordinated to the Exchange Debentures, or any guarantee thereof) that are assumed by the transferee in of any such transaction assets and (By) any consideration notes or other obligations received by the Company Holdings or any such Restricted Subsidiary from such transferee that are promptly, but in no event more than 30 days after receipt, converted by Holdings or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company Holdings may apply such Net Proceeds, at its optionProceeds (a) to reduce permanently long-term Indebtedness of a Restricted Subsidiary, (ib) to repay reduce permanently Indebtedness (and, in the case of revolving Indebtedness, to reduce permanently the commitments) under a the New Credit FacilityAgreement, or (iic) to the acquisition of Permitted Securitiesan investment in another business, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets tangible assets, in each case, in the same or a Similar Business. Pending similar line of business as Holdings was engaged in on the final application date of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first preceding sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When ." On the earlier of (i) the 366th day after an Asset Sale or (ii) such date as the Board of Holdings or the Restricted Subsidiary determines not to apply the Net Proceeds relating to such Asset Sale in the manner set forth in (a), (b) or (c), if the aggregate amount of Excess Proceeds exceeds $10.0 7.5 million, the Company shall Holdings will be required to make an offer to all holders Holders of 1997 Notes Exchange Debentures (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes Exchange Debentures 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness Exchange Debentures tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess Proceeds, the Company Holdings may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness Exchange Debentures surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes Exchange Debentures to be purchased on a pro rata basis. Upon completion of such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds shall be reset at zero.. The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the "Asset Sale Offer Period"). No later than five Business Days after the termination of the Asset Sale Offer Period (the "Asset Sale Purchase Date"), Holdings shall purchase the principal amount of Exchange Debentures required to be purchased pursuant to this covenant (the "Asset Sale Offer Amount") or, if less than the Asset Sale Offer Amount has been tendered, all Exchange Debentures tendered in response to the Asset Sale Offer. Payment for any Exchange Debentures so purchased shall be made in the same manner as interest payments are made on the Exchange Debentures. If the Asset Sale Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name an Exchange Debenture is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Exchange Debentures pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, Holdings shall send, by first class mail, a notice to the Trustee and each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Exchange Debentures pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
Appears in 2 contracts
Samples: Indenture (Cottontops Inc), Indenture (Anvil Holdings Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash and Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (x) any Senior Debt 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 pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed from further liability and (y) any securities, notes or other obligations received by the transferee in Company or any such transaction and Restricted Subsidiary from such transferee that are contemporaneously (Bsubject to ordinary settlement periods) any consideration received converted by the Company or such Restricted Subsidiary, as Subsidiary into cash or Cash Equivalents (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash and Cash Equivalents received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (ia) to repay Indebtedness under Senior Debt of the Company or a Credit FacilitySubsidiary Guarantor, or (iib) to the acquisition of Permitted Securities, all or substantially all a majority of the assets of one or more Similar Businessesof, or a majority of the Voting Stock of, another Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets that are used or useful in a Similar BusinessPermitted Business or (c) to the acquisition by the Company or a Restricted Subsidiary of Equity Interests in any Restricted Subsidiary of the Company, which Equity Interests are owned by a Person other than the Company or an Affiliate of the Company. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall will be required to make an offer to all Holders of Notes and all holders of 1997 Notes other Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes and such other Indebtedness 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this IndentureIndenture and such other Indebtedness. To the extent that the aggregate amount any Excess Proceeds remain after consummation of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess ProceedsOffer, the Company may use any Remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes or pari passu and such other Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes and such other Indebtedness to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. Certain procedures regarding Asset Sale Offers are set forth in Section 3.09 hereof.
Appears in 2 contracts
Samples: Indenture (Prime Medical Services Inc /Tx/), Sun Medical Technologies Inc /Ca/
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the 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 (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (a) any Senior Debt liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that is are by their terms subordinated to the Notes or any Note Guarantee thereof) that are assumed by the transferee in of any such transaction assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability and (Bb) any consideration securities, notes or other obligations received by the Company or such Restricted Subsidiary, as Subsidiary from such transferee that are immediately converted by the case may be, that consists of Company or such Restricted Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businesses, (2cash received) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 360 days after of the receipt of any Net Proceeds from an Asset Sale, the Company or any of its Restricted Subsidiaries may apply such Net Proceeds, at its option, (ia) to repay Indebtedness Senior Debt of the Company or any of its Restricted Subsidiaries or to provide cash collateral with respect to any letters of credit outstanding under a the Credit FacilityFacility and, in each case, to correspondingly reduce commitments with respect thereto in the case of revolving borrowings or (iib) to the acquisition of Permitted Securitiesa controlling interest in another business, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Businessassets. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall be required to make an offer to all holders Holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes that may be purchased out of the Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof; plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereonLiquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate principal amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchasean Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 2 contracts
Samples: Indenture (Holmes Products Corp), Indenture (Holmes Products Corp)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an any Asset Sale Sale, unless (i) the consideration received by the Company (or the such 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 (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor (excluding contingent liabilities assumed by the transferee of any such assets) received by consists of cash or Temporary Cash Investments or the assumption of Senior Indebtedness of the Company or such Restricted Subsidiarya Subsidiary Guarantor, as the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, provided that (A) the amount of any Senior Debt of the Company or such Restricted Subsidiary that is assumed by the transferee in any irrevocably released from all liability under such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provisionIndebtedness. Within 365 360 days after the receipt of any Net Cash Proceeds from an Asset SaleSale (other than Barbary Excess Net Cash Proceeds), the Company may shall or shall cause the relevant Restricted Subsidiary to (i)(A) apply an amount equal to such Net Proceeds, at its option, Cash Proceeds to permanently repay Senior Indebtedness of the Company or a Subsidiary Guarantor or (iB) to repay Indebtedness under a Credit Facilityinvest 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 property or assets (other than current assets) of a nature or type or that are used in a business (or in Capital Stock of a company having property and assets of a nature or type, or engaged in a business) similar or related to the 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 and (ii) apply (no later than the end of the 12-month period referred to in clause (i)) such excess Net Cash Proceeds (to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are extent not applied or invested pursuant to clause (i)) as provided in the first sentence following paragraph of this paragraph subparagraph 8(b). The amount of such excess Net Cash Proceeds required to be applied (or to be committed to be applied) during such 12-month period as set forth in clause (i) of the preceding sentence and not applied as so required by the end of such period shall be deemed to constitute "Excess Proceeds"." Pending application of such Net Cash Proceeds by the end of the relevant period, the Company and its Restricted Subsidiaries may use such Net Cash Proceeds to temporarily repay revolving Indebtedness. When If, as of the first day of any calendar month, the aggregate amount of Excess Proceeds exceeds not theretofore subject to an Offer to Purchase pursuant to this subparagraph 8(b) totals at least $10.0 million, the Company shall make must commence, not later than the fifteenth Business Day of such month, an offer Offer to Purchase to the Holders and, to the extent required by the terms of any Pari Passu Indebtedness, an Offer to Purchase to all holders of 1997 Notes (an "Asset Sale Offer") to purchase such Pari Passu Indebtedness, the maximum principal amount of 1997 Notes and any such Pari Passu Indebtedness 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 thereof, plus, in each case, accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereonAdditional Interest, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposesPayment Date. If the aggregate principal amount of Notes or pari passu and any such Pari Passu Indebtedness surrendered tendered by Holders holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company Notes and Pari Passu Indebtedness shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon the completion of any such offer Offers to purchasePurchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 2 contracts
Samples: Second Supplemental Indenture (Coast Resorts Inc), Coast Resorts Inc
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) for any Asset Sale other than an Asset Sale of Unrestricted Margin Stock at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (x) 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 Senior Debt Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed from further liability and (y) any securities, notes or other obligations received by the transferee in Company or any such transaction and (B) any consideration received Restricted Subsidiary from such transferee that are promptly converted by the Company or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 270 days after the receipt of any Net Proceeds from an Asset SaleSale other than an Asset Sale of Unrestricted Margin Stock, the Company may apply such Net Proceeds, at its option, (ia) to repay permanently reduce Indebtedness under a the Credit Facility, Facilities (and correspondingly reduce commitments thereunder) or to permanently reduce other Senior Indebtedness of the Company or any Guarantor or (iib) to the acquisition of a controlling interest in a Permitted SecuritiesBusiness, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business(collectively "Replacement Assets"). Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales Sales, other than an Asset Sale of Unrestricted Margin Stock, that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall be required to make an offer Asset Sale Offer to all holders Holders of 1997 Senior Notes (an "Asset Sale Offer") and Additional Senior Notes to purchase the maximum principal amount of 1997 Senior Notes and Additional Senior Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in Section 3.09 of this Indenture. To the extent that the aggregate amount of Senior Notes or pari passu Indebtedness and Additional Senior Notes tendered pursuant to a Secondary an Asset Sale Offer is less than or equal to the Remaining Excess Proceeds, the Company (or such Subsidiary) may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Senior Notes or pari passu Indebtedness and Additional Senior Notes surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Senior Notes and Additional Senior Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 2 contracts
Samples: Indenture (Varsity Spirit Corporation), Indenture (Riddell Sports Inc)
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 (i) the Company (or the 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 (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution Fair Market Value of the Board of Directors with respect assets and property subject to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of any Senior Debt of paid to the Company or such Restricted Subsidiary that in connection with such Asset Sale and all other Asset Sales since the Issue Date, on a cumulative basis, is assumed in the form of cash, Cash Equivalents, Liquid Securities, Exchanged Properties (including pursuant to asset swaps) or the assumption by the transferee purchaser of liabilities of the Company (other than liabilities of the Company that are by their terms subordinated to the Notes) or liabilities of any Guarantor that made such Asset Sale (other than liabilities of a Guarantor that are by their terms subordinated to such Guarantor’s Guarantee), or any combination of the foregoing, in each case as a result of which the Company and its remaining Restricted Subsidiaries are no longer liable for such liabilities, or, solely in the case of any such transaction and (B) Asset Sale of Production Facility or Pipeline Assets, Permitted MLP Securities; provided , that any consideration received Asset Sale pursuant to a condemnation, appropriation or other similar taking, including by deed in lieu of condemnation, or pursuant to the foreclosure or other enforcement of a Lien incurred not in breach of Section 4.10 or exercise by the Company related lienholder of rights with respect thereto, including by deed or such Restricted Subsidiary, as assignment in lieu of foreclosure shall not be required to satisfy the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) other long-term assets that are used or useful conditions set forth in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, clauses (i) to repay Indebtedness under a Credit Facility, or and (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zeroa).
Appears in 2 contracts
Samples: Indenture (Continental Resources, Inc), Continental Resources, Inc
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a Board Resolution and as set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, provided that (A) the amount of (x) any Senior Debt 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 pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed from further liability and (y) any securities, notes or other obligations received by the transferee in Company or any such transaction and (B) any consideration received Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (ia) to repay Indebtedness permanently reduce (or, in the case of letters of credit or Eurodollar loans under a the Credit FacilityAgreement, cash collateralize) any Senior Debt (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings), or (iib) to the acquisition of Permitted Securitiesa controlling interest in another business, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets assets, in a Similar Businesseach case, in the same line of business as the Company was engaged in on the date of this Indenture. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall shall, within ten Business Days thereafter, be required to make an offer to all holders of 1997 Notes (an "Asset Sale Offer") Offer to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereonLiquidated Damages, if any, thereon, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. 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 or regulations are applicable in connection with the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Indenture by virtue thereof.
Appears in 2 contracts
Samples: Execution (Massic Tool Mold & Die Inc), Credit Agreement (Massic Tool Mold & Die Inc)
Asset Sales. The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) sell, lease, convey or otherwise dispose of any assets (including by way of a sale-and-leaseback) other than sales of inventory in the Company ordinary course of business consistent with past practice (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Borrower shall be governed by the provisions of Section 8.03 hereof and not by the provisions of this Section 8.02), or (ii) issue or sell Equity Interests of any of its Subsidiaries, in the case of either clause (i) or (ii) above, whether in a single transaction or a series of related transactions, (A) that have a fair market value in excess of $5,000,000, or (B) for net proceeds in excess of $5,000,000 (each of the foregoing, an "Asset Sale"), unless (X) the Borrower (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board board of Directors with respect directors of the General Partner (and, if applicable, the audit committee of such board of directors) set forth in a certificate signed by a Responsible Officer and delivered to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionAgent) of the assets or Equity Interests issued or sold or otherwise disposed of and (iiY) at least 80% of the consideration therefor received by the Company Borrower or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of (1) any Senior Debt liabilities (as shown on the Borrower's or such Subsidiary's most recent balance sheet or in the notes thereto), of the Company Borrower or such Restricted any Subsidiary (other than liabilities that is are by their terms subordinated in right of payment to the Obligations hereunder) that are assumed by the transferee in of any such transaction assets and (B2) any consideration notes or other obligations received by the Company Borrower or any such Subsidiary from such transferee that are immediately converted by the Borrower or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after ; and provided, further, that the receipt of 80% limitation referred to in this clause (Y) shall not apply to any Net Proceeds from an Asset Sale, Sale in which the Company may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to the acquisition of Permitted Securities, all or substantially all cash portion of the assets of one or more Similar Businessesconsideration received therefrom, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, determined in accordance with the procedures set forth in foregoing proviso, is equal to or greater than what the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an after-tax proceeds would have been had such Asset Sale Offer complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (x) any transfer of assets by the Borrower or any of its Subsidiaries to a Subsidiary of the Borrower that is a Guarantor, (y) any transfer of assets by the Borrower or any of its Subsidiaries to any Person in exchange for other assets used in a line of business permitted under Section 8.15 hereof and having a fair market value not less than that of the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds assets so transferred and (Bz) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders transfer of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered assets pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zeroPermitted Investment.
Appears in 2 contracts
Samples: Credit Agreement (Ferrellgas Finance Corp), Credit Agreement (Ferrellgas Partners Finance Corp)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale (excluding for this purpose an Event of Loss) unless (ia) the Company (or the 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 (evidenced by as determined in accordance with the definition of such term, the results of which determination shall be set forth in an Officers' ’ Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets properties, assets, rights or Equity Interests issued or sold or otherwise disposed of and (iib) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, that (A) the amount of (i) any Senior Debt liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that is are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee in of any such transaction assets, properties, rights or Equity Interests pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability, (ii) Liquid Securities and (Biii) any consideration securities, notes or other obligations received by the Company or such Restricted Subsidiary, as Subsidiary from such transferee that are converted within 180 days by the case may be, that consists of Company or such Restricted Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businesses, (2cash received in that conversion) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall each be deemed to be cash Cash Equivalents for purposes of this provisionSection 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset SaleSale (including, without limitation, any Event of Loss), the Company or any such Restricted Subsidiary may apply such Net Proceeds, at its option, Proceeds to (ia) to permanently repay all or any portion of the principal of any secured Indebtedness under a Credit Facility, or (ii) to the acquisition extent of Permitted Securities, all or substantially all the fair value of the assets collateralizing such Indebtedness, as determined by the Board of one Directors) or more Similar Businesses(b) acquire (including by way of a purchase of assets or stock, merger, consolidation or otherwise) Productive Assets, provided that if the Company or such Restricted Subsidiary enters into a binding agreement to acquire such Productive Assets within such 365-day period, but the consummation of the transactions under such agreement has not occurred within such 365-day period, and the agreement has not been terminated, then the 365-day period will be extended to 18 months to permit such consummation; provided further, however, if such consummation does not occur, or such agreement is terminated within such 18-month period, then the making Company may apply, or cause such Restricted Subsidiary to apply, within 90 days after the end of a capital expenditure the 18-month period or the acquisition effective date of other long-term assets such termination, whichever is earlier, such Net Proceeds as provided in a Similar Businessclauses (a) and (b) of this paragraph. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce Indebtedness outstanding revolving credit borrowings, including borrowings under a the Credit Facility Facility, or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence clauses (a) and (b) of this paragraph shall be deemed to constitute "“Excess Proceeds". When .” Within 30 days of each date on which the aggregate amount of Excess Proceeds exceeds $10.0 million20,000,000, the Company shall make commence an offer to all holders of 1997 Notes (an "Asset Sale Offer") Offer pursuant to Section 3.09 hereof to purchase the maximum principal amount of 1997 Notes that may be purchased out of the Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereoninterest, if any, thereon, to the date of purchase, in accordance with the procedures set forth in this IndentureSection 3.09 hereof; provided, however, that, if the Company is required to apply such Excess Proceeds to purchase, or to offer to purchase, any Pari Passu Indebtedness, the Company shall only be required to offer to purchase the maximum principal amount of Notes that may be purchased out of the amount of such Excess Proceeds multiplied by a fraction, the numerator of which is the aggregate principal amount of Notes outstanding and the denominator of which is the aggregate principal amount of Notes outstanding plus the aggregate principal amount of Pari Passu Indebtedness outstanding. To the extent that the aggregate principal amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess Proceedsamount that the Company is required to purchase, the Company may use any Remaining remaining Excess Proceeds for general corporate purposespurposes in any manner not prohibited by this Indenture. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, that the Company shall repurchase such Indebtedness on a pro rata basis and is required to purchase, the Trustee shall select the Notes to be purchased on a pro rata basisbasis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof, shall be purchased). Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. The Company shall not, and shall not permit any Restricted Subsidiary to, enter into or suffer to exist any agreement (other than any agreement governing the Credit Facility) that would place any restriction of any kind (other than pursuant to law or regulation) on the ability of the Company to make an Asset Sale Offer.
Appears in 2 contracts
Samples: Indenture (Hornbeck Offshore Services Inc /La), Indenture (Hornbeck Offshore Services Inc /La)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the 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 (evidenced by a resolution of the Board of Managers set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, consists is in the form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (x) any Senior Debt 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 pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed from further liability and (y) any securities, notes or other obligations received by the transferee in Company or any such transaction and (B) any consideration received Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businesses, (2cash received) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries shall be permitted to consummate an Asset Sale without complying with the prior paragraph if (i) 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 or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company's Board of Managers set forth in an Officers' Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Indebtedness Senior Debt and, in the case of any Senior Debt under any revolving credit facility, effect a Credit Facilitycorresponding commitment reduction under such credit facility, or (ii) to the acquisition of a controlling interest in a Permitted SecuritiesBusiness, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in Additional Assets or (iii) a Similar Businesscombination of prepayment and investment permitted by the forgoing clauses (i) and (ii). Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall Issuers will be required to make an offer to all holders Holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture (the first date the aggregate of all such Net Proceeds is equal to $10.0 million or more shall be deemed an "Asset Sale Offer Trigger Date"). Each Asset Sale Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Asset Sale Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. Upon receiving notice of the Asset Sale Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. To the extent that the aggregate amount any Excess Proceeds remain after consummation of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess ProceedsOffer, the Company may use any Remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes or pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased among the Holders of the Notes in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot or in accordance with any other method the Trustee considers fair and appropriate. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations under the Asset Sale provisions of this Indenture by virtue thereof.
Appears in 2 contracts
Samples: Alliance Laundry Holdings LLC, Alliance Laundry Holdings LLC
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate cause or make an Asset Sale unless (i) the Company (or the 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 (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value Directors, which in the event such case of an Asset Sale involves aggregate consideration with a Fair Market Value exceeding $5 million, shall be set forth in excess of $5.0 millionan Officer's Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (x) any Senior Debt 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 pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed from further liability and (y) any notes or other Obligations received by the transferee in Company or any such transaction and (B) any consideration received Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 270 days after the Company's or any Restricted Subsidiary's receipt of any the Net Proceeds from an of any Asset Sale, the Company may apply or such Net ProceedsRestricted Subsidiary, at its option, may apply (or in the case of clause (ii) or (iii) below, enter into a binding, definitive agreement within such time period to apply) the Net Proceeds from such Asset Sale (i) to repay Indebtedness permanently reduce Obligations under a the Senior Credit FacilityFacility (and to correspondingly reduce commitments with respect thereto) or other Senior Debt or Pari Passu Indebtedness, or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of a controlling interest in any one or more Similar Businessesbusinesses, or to the making of a capital expenditure (including the construction or improvement of properties and capital assets) or the acquisition of other long-term assets assets, in each case, that is engaged in or that is used or useful in a Similar BusinessPrincipal Business and/or (iii) to an investment in properties or assets that replace the properties and assets that are the subject of such Asset Sale. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a Credit Facility revolving credit facility, if any, or otherwise invest such Net Proceeds in any manner that is not prohibited by this IndentureCash Equivalents. Any Net Proceeds from the Asset Sales Sale that are not applied or invested as provided and within the time period set forth in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". ." 36 43 When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all holders Holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes Notes, that is an integral multiple of $1,000, that may be purchased out of the Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date fixed for the closing of purchasesuch offer, in accordance with the procedures set forth in herein. The Company shall commence an Asset Sale Offer with respect to Excess Proceeds within ten Business Days after the 1997 date that the aggregate amount of Excess Proceeds exceeds $10.0 million by mailing the notice required pursuant to the terms of this Indenture, with a copy to the Trustee. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining remaining Excess Proceeds for general corporate purposesany purpose not prohibited by this Indenture. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of any such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds shall be reset at zero. 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 the Notes as a result of an Asset Sale. SECTION 4.11.
Appears in 1 contract
Samples: Metal Management Inc
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% (100% in the case of lease payments) of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (a) any Senior Debt liabilities (as shown on the Company's, or such Subsidiary's, most recent balance sheet) of the Company or such Restricted any Subsidiary (other than contingent liabilities and liabilities that is are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee in of any such transaction assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability and (Bb) any consideration notes or other obligations received by the Company or any such Restricted Subsidiary, as Subsidiary from such transferee that are immediately converted by the case may be, that consists of Company or such Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, to (i) to repay permanently reduce Indebtedness under the New Credit Facility; provided that such permanent reduction is accompanied by a corresponding reduction in the lending commitments under the New Credit Facility, or (ii) acquire another business or other longterm assets, in each case, in, or used or useful in, the same or a similar line of business as the Company or any of its Subsidiaries was engaged in on the date of this Indenture or any reasonable extension or expansion thereof (including the Capital Stock of another Person engaged in such business; provided such other Person is, or immediately after and giving effect to such acquisition shall become, a Wholly-Owned Subsidiary of the Company (other than a Receivables Subsidiary)), or (iii) reimburse the Company or any of its Subsidiaries for expenditures made, and costs incurred, to repair, rebuild, replace or restore property subject to loss, damage or taking to the acquisition extent that the Net Proceeds consist of Permitted Securitiesinsurance or condemnation or similar proceeds received on account of such loss, all damage or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Businesstaking. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving Indebtedness under a the New Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenturecash or Cash Equivalents. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall be required to make an offer to all holders of 1997 Notes (an "Asset Sale Offer") Offer to purchase the maximum principal amount (that is an integral multiple of 1997 $1,000) of Notes 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 unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in the 1997 IndentureArticle 3 hereof. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company (or such Subsidiary) may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basisbasis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased). Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. Notwithstanding the foregoing, the Company and its Subsidiaries shall be permitted to consummate one or more Asset Sales with respect to assets or properties with an aggregate fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) not in excess of $5.0 million with respect to all such Asset Sales made subsequent to the date of this Indenture without complying with the provisions of the preceding paragraphs.
Appears in 1 contract
Samples: Indenture (Delta Mills Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale in excess of $1,000,000 unless (i) the Company (or the 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 of the assets or Equity Interests sold or otherwise disposed of and, in the case of a lease of assets, a lease providing for rent and other conditions which are no less favorable to the Company (or the Subsidiary, as the case may be) in any material respect than the then prevailing market conditions (evidenced in each case by a resolution of the Board of Directors of such entity set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% (100% in the case of lease payments) of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (x) any Senior Debt Indebtedness of the Company or any Indebtedness of any Subsidiary (as shown on the Company's or such Restricted Subsidiary Subsidiary's most recent balance sheet or in the notes thereto, but excluding contingent liabilities and trade payables) that is assumed by the transferee in of any such transaction assets and from which the Company or such Subsidiary is unconditionally released from liability and (By) any consideration notes, securities or other obligations received by the Company or any such Restricted SubsidiarySubsidiaries from such transferee that are promptly, as but in no event more than 30 days after receipt, converted by the case may be, that consists of Company or such Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businessescash received) shall, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall each case, be deemed to be cash for purposes of this provision. Within 365 days after provision and the receipt of such cash shall be treated as cash received from the Asset Sale for which such Notes or obligations were received. The Company or any of its Subsidiaries may apply the Net Proceeds from an each Asset Sale, the Company may apply such Net Proceeds, at its option, within 360 days after the consummation of such Asset Sale, (ia) to repay permanently reduce any Senior Indebtedness under a Credit Facilityor any Indebtedness of its Subsidiaries (and in the case of any senior revolving indebtedness of the Company or its Subsidiaries correspondingly permanently to reduce commitments with respect thereto), or (iib) to make capital expenditures, for the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure another business or the acquisition of other long-term assets assets, in each case, in the same or a Similar BusinessRelated Business or (c) to reimburse the Company or its Subsidiaries for expenditures made, and costs incurred, to repair, rebuild, replace or restore property subject to loss, damage or taking to the extent that the Net Proceeds consist of insurance proceeds received on account of such loss, damage or taking. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 million5,000,000, the Company shall be required to make an unconditional and irrevocable offer to all holders Holders of 1997 Notes (an "Asset Sale Offer") and to holders of other Indebtedness of the Company outstanding ranking on a parity with the Notes with similar provisions requiring the Company to make a similar offer with proceeds from asset sales, pro rata in proportion to the respective principal amounts (or accreted values in the case of Indebtedness issued with an original issue discount) of the Notes and such other Indebtedness then outstanding, to purchase the maximum principal amount (or accreted value, as applicable) of 1997 Notes and such other Indebtedness, if any, 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 (or accreted value, as applicable) thereof, plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereonLiquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount (or accreted value, as applicable) of Notes or pari passu and such Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basisbasis in increments of $1,000 with such Indebtedness. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.. Any Asset Sale Offer shall remain open for at least 20 Business Days, but in any event no longer than 30 Business Days, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than five Business Days after the termination of the Offer Period (the "Purchase Date"), the Company shall purchase the principal amount of Notes required to be purchased pursuant to this Section 4.8 (the "Offer Amount") or, if less than the Offer Amount has been tendered, all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. Any Asset Sale Offer shall be made in compliance with all applicable laws, rules, and regulations, including, if applicable, Regulation 14E of the Exchange Act and the rules and regulations thereunder and all other applicable Federal and state securities laws. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this paragraph, compliance by the Company or any of its subsidiaries with such laws and regulations shall not in and of itself cause a breach of its obligations under such covenant. If the payment date in connection with an Asset Sale Offer hereunder is on or after an interest payment Record Date and on or before the associated Interest Payment Date, any accrued and unpaid interest (and Liquidated Damages, if any, due on such Interest Payment Date) will be paid to the person in whose name a Note is registered at the close of business on such Record Date, and such interest (or Liquidated Damages, if applicable) will not be payable to Holders who tender Notes pursuant to such Asset Sale Offer. Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
Appears in 1 contract
Samples: Bell Sports Corp
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the 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 (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect Managers set forth in an Officers’ Certificate delivered to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, consists is in the form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (x) any Senior Debt 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 pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed from further liability and (y) any securities, notes or other obligations received by the transferee in Company or any such transaction and (B) any consideration received Restricted Subsidiary from such transferee that are immediately converted by the Company or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businesses, (2cash received) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries shall be permitted to consummate an Asset Sale without complying with the prior paragraph if (i) 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 or other property sold, issued or otherwise disposed of (as evidenced by a resolution of the Company’s Board of Managers set forth in an Officers’ Certificate delivered to the Trustee) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, long-term assets used or useful in a Permitted Business and/or cash or Cash Equivalents; provided that any cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this paragraph shall constitute Net Proceeds subject to the provisions of the next succeeding paragraph. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Indebtedness Senior Debt and, in the case of any Senior Debt under any revolving credit facility, effect a Credit Facilitycorresponding commitment reduction under such credit facility, or (ii) to the acquisition of a controlling interest in a Permitted SecuritiesBusiness, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in Additional Assets or (iii) a Similar Businesscombination of prepayment and investment permitted by the forgoing clauses (i) and (ii). Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "“Excess Proceeds". .” When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall Issuers will be required to make an offer to all holders Holders of 1997 Notes (an "“Asset Sale Offer"”) to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture (the first date the aggregate of all such Net Proceeds is equal to $10.0 million or more shall be deemed an “Asset Sale Offer Trigger Date”). Each Asset Sale Offer will be mailed to the record Holders as shown on the register of Holders within 25 days following the Asset Sale Offer Trigger Date, with a copy to the Trustee, and shall comply with the procedures set forth in this Indenture. Upon receiving notice of the Asset Sale Offer, Holders may elect to tender their Notes in whole or in part in integral multiples of $1,000 in exchange for cash. To the extent that the aggregate amount any Excess Proceeds remain after consummation of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess ProceedsOffer, the Company may use any Remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes or pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased among the Holders of the Notes in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot or in accordance with any other method the Trustee considers fair and appropriate. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations under the Asset Sale provisions of this Indenture by virtue thereof.
Appears in 1 contract
Samples: Supplemental Indenture (Alliance Laundry Systems LLC)
Asset Sales. The Company Issuer shall not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (ia) the Company (Issuer or the 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 (evidenced by a resolution of the board of directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (iib) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of any Senior Debt of the Company Issuer or such Restricted Subsidiary that is assumed by in the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists form of (1i) all cash or substantially all of the assets of one Cash Equivalents or more Similar Businesses, (2ii) other long-term property or assets that are used or useful in one a Permitted Business, or more Similar Businesses the Capital Stock of any Person engaged in a Permitted Business if, as a result of the acquisition by the Issuer or any Restricted Subsidiary thereof, such Person becomes a Restricted Subsidiary; provided that the amount of (x) any liabilities (as shown on the Issuer's or such Restricted Subsidiary's most recent balance sheet), of the Issuer or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Debentures or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Issuer or such Restricted Subsidiary from further liability, (y) any securities, notes or other obligations received by the Issuer or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Issuer or such Restricted Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received), and (3z) Permitted Securities shall be deemed any Designated Noncash Consideration received by the Issuer or any of its Restricted Subsidiaries in such Asset Sale having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to be cash for purposes this clause (z) that is at that time outstanding, not to exceed 15% of this provision. Within 365 days after Total Assets at the time of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, Designated Noncash Consideration (i) to repay Indebtedness under a Credit Facility, or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in fair market value of each item of Designated Noncash Consideration being measured at the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") time received and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.without giving effect to
Appears in 1 contract
Samples: Thermadyne Holdings Corp /De
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the 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 (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (a) any Senior Debt liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that is are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee in of any such transaction assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability and (Bb) any consideration securities, notes or other obligations received by the Company or such Restricted Subsidiary, as Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the case may be, that consists of Company or such Restricted Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 270 days after the receipt of any Net Proceeds from an Asset Sale, the Company may may, subject to the provisions of Section 4.07 hereof, (a) apply such Net Proceeds, at its option, Proceeds to the permanent repayment of any Indebtedness that is pari passu with the Notes or (b) (i) to repay Indebtedness under a Credit Facility, or (ii) apply such Net Proceeds to the acquisition of Permitted Securities, all the assets or substantially all a majority of the assets voting equity interests of one or more Similar Businessesanother Person, or the making of a capital expenditure expenditures, or the acquisition of other long-term assets assets, in each case, in or used or useful in the Telecommunications Business or (ii) enter into a Similar Businessbinding commitment to apply, within 120 days of the date of such commitment, such Net Proceeds as described in clause (i) above. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase repurchase the maximum principal amount of 1997 Notes 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 thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchaserepurchase date, in accordance with the procedures set forth in the 1997 IndentureSection 3.09 hereof. To the extent that the aggregate amount any Excess Proceeds remain after consummation of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof tendered pursuant to such Asset Sale Offer exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Onepoint Communications Corp /De
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an any Asset Sale unless unless, (i) the Company (or the 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 (evidenced as determined in good faith by the Board of Directors (including as to the value of all noncash consideration) and set forth in an Officers' Officer's Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor is in the form of cash and/or Cash Equivalents, and (iii) the Net Proceeds received by the Company (or such Restricted Subsidiary, as the case may be) from such Asset Sale are applied within 360 days following the receipt of such Net Proceeds (a) to repay, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of any Senior Debt redeem or repurchase outstanding pari passu Indebtedness of the Company or Indebtedness of any Restricted Subsidiary; provided that in the event that such Restricted Subsidiary that is assumed a Guarantor, the Indebtedness to be redeemed or repurchased ranks at least pari passu to the Guarantee given by the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be(b) to reinvest, that consists of or enter into a legally binding agreement to reinvest, such Net Proceeds (1or any portion thereof) all or substantially all of the assets of one or more Similar Businesses, (2) other long-term in assets that are used or useful in one a Permitted Business or more Similar Businesses in the Capital Stock of a Person engaged in a Permitted Business that is or immediately thereafter becomes a Restricted Subsidiary or (c) in any combination permitted by clauses (a) and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Businessb). Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this IndentureCash Equivalents. Any The balance of such Net Proceeds, after the application of such Net Proceeds from Asset Sales that are not applied or invested as provided described in the first sentence of this paragraph immediately preceding clauses (a) and (b), shall be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds equals or exceeds $10.0 15.0 million, the Company shall will be required to and, at the election of the Company, at any earlier time, the Company, may make an offer to all holders Holders of 1997 Notes Securities and pari passu Indebtedness (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes Securities and pari passu Indebtedness that may be purchased out of the Excess Proceeds, at an offer a purchase price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest thereon to the date of purchase, in accordance with the procedures set forth in Article 3 of this Indenture and the 1997 Indentureagreements governing such pari passu Indebtedness. To the extent that the aggregate amount any Excess Proceeds remain after consummation of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes or Securities and pari passu Indebtedness surrendered tendered into such Asset Sale Offer by Holders holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes Securities and pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds shall be reset at zerozero for purposes of the first sentence of this paragraph. 64 64 The amount of (i) any liabilities (as shown on the Company's (or such Restricted Subsidiary's, as the case may be) 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 Securities or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to an agreement that releases the Company or any Restricted Subsidiary from all liability in respect thereof, (ii) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale (iii) any securities, Securities or other obligations received by the Company (or such Restricted Subsidiary, as the case may be) from such transferee that are converted by the Company (or such Restricted Subsidiary, as the case may be) into cash and/or Cash Equivalents (to the extent of the cash and/or Cash Equivalents received) within 180 days following the receipt thereof, (iv) the Fair Market Value of any assets used or useful in a Permitted Business received in such Asset Sale and (v) any Designated Noncash 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 Noncash Consideration received pursuant to this clause (v) that is at that time outstanding, not to exceed 10% of Consolidated Tangible Assets at the time of receipt of such Designated Noncash Consideration, will be deemed to be cash and/or Cash Equivalents for purposes of this provision. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act, and any other securities laws and regulations to the extent such laws and regulations are applicable in connection with the purchase of the Securities as a result of an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue thereof.
Appears in 1 contract
Samples: Asia Global Crossing LTD
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) , receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors of the Company set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests Properties issued or sold or otherwise disposed of and (ii) at least 8085% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (x) any Senior Debt liabilities (as shown on the Company's or such Subsidiary's most recent balance sheet) of the Company or such Restricted any Subsidiary (other than contingent liabilities and liabilities that is are Subordinated Indebtedness or otherwise by their terms subordinated to the Securities or the Subsidiary Guarantees) that are assumed by the transferee in of any such transaction assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability and (By) any consideration notes or other obligations received by the Company or any such Restricted Subsidiary, as Subsidiary from such transferee that are converted by the case may be, that consists Company or such Subsidiary into cash within 180 days of closing such Asset Sale (1) all or substantially all to the extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 180 days after the receipt of any Net Cash Proceeds from an any Asset Sale, the Company may apply such Net Proceeds, at its option, (i) apply all or any of the Net Cash Proceeds therefrom to repay Indebtedness under a Credit Facility(other than Subordinated Indebtedness) of the Company or any Subsidiary, provided, in each case, that the related loan commitment of any revolving credit facility or other borrowing (if any) is thereby permanently reduced by the amount of such Indebtedness so repaid, or (ii) to the acquisition of Permitted Securities, invest all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.part of
Appears in 1 contract
Samples: Packaged Ice Inc
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the 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 (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests of Subsidiaries issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, provided that (A) the amount of (a) any Senior Debt liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that is are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee in of any such transaction assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability and (Bb) any consideration securities, notes or other obligations received by the Company or such Restricted Subsidiary, as Subsidiary from such transferee that are immediately converted by the case may be, that consists of Company or such Restricted Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businesses, (2cash received) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provisionSection 4.10. Within 365 270 days after of the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, Senior Debt or (ii) to the acquisition of Permitted Securitiesa controlling interest in another business, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Businessassets. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess AExcess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall be required to make an offer Asset Sale Offer to all holders Holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes that may be purchased out of the Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in the 1997 IndentureSection 3.09 hereof. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchasean Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless: (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets disposed of or the Equity Interests of the Restricted Subsidiary issued or sold or otherwise disposed of (determined by the Board of Directors of the Company if such fair market value exceeds $5.0 million); and (ii) at least 8075% of the consideration therefor received in the Asset Sale by the Company or such Restricted SubsidiarySubsidiary is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash or Cash Equivalents: (a) any liabilities, as shown on the case may beCompany’s or such Restricted Subsidiary’s most recent balance sheet, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that (Aare by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the amount transferee of any Senior Debt such assets or terminated by the holder of such liability and the Company or such Restricted Subsidiary that is assumed released from further liability; (b) any securities, notes or other obligations received by the transferee in Company or any such transaction and (B) any consideration received Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all Subsidiary into cash or substantially all of the assets of one or more Similar Businesses, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 Cash Equivalents within 90 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if anyreceipt, to the date extent of purchasethe cash or Cash Equivalents received in that conversion; (c) any Designated Non-cash Consideration received by the Company or any such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, in accordance taken together with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered all other Designated Non-cash Consideration received pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceedsthis clause (c) that at that time has not been converted to cash, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes not to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.exceed
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% (100% in the case of lease payments) of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (a) any Senior Debt liabilities (as shown on the Company's, or such Subsidiary's, most recent balance sheet) of the Company or such Restricted any Subsidiary (other than contingent liabilities and liabilities that is are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee in of any such transaction assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability and (Bb) any consideration notes or other obligations received by the Company or any such Restricted Subsidiary, as Subsidiary from such transferee that are immediately converted by the case may be, that consists of Company or such Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, to (i) to repay permanently reduce Indebtedness under the New Credit Facility; provided that such permanent reduction is accompanied by a corresponding reduction in the lending commitments under the New Credit Facility, or (ii) to the acquisition of Permitted Securities, all acquire another business or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets assets, in each case, in, or used or useful in, the same or a Similar Businesssimilar line of business as the Company or any of its Subsidiaries was engaged in on the date of this Indenture or any reasonable extension or expansion thereof (including the Capital Stock of another Person engaged in such business; provided such other Person is, or immediately after and giving effect to such acquisition shall become, a Wholly-Owned Subsidiary of the Company (other than a Receivables Subsidiary)), or (iii) reimburse the Company or any of its Subsidiaries for expenditures made, and costs incurred, to repair, rebuild, replace or restore property subject to loss, damage or taking to the extent that the Net Proceeds consist of insurance or condemnation or similar proceeds received on account of such loss, damage or taking. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving Indebtedness under a the New Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenturecash or Cash Equivalents. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall be required to make an offer to all holders of 1997 Notes (an "Asset Sale Offer") Offer to purchase the maximum principal amount (that is an integral multiple of 1997 $1,000) of Notes 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 unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in the 1997 IndentureArticle 3 hereof. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company (or such Subsidiary) may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basisbasis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased). Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. Notwithstanding the foregoing, the Company and its Subsidiaries shall be permitted to consummate one or more Asset Sales with respect to assets or properties with an aggregate fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) not in excess of $5.0 million with respect to all such Asset Sales made subsequent to the date of this Indenture without complying with the provisions of the preceding paragraphs.
Appears in 1 contract
Samples: Delta Woodside Industries Inc /Sc/
Asset Sales. The Company shall not, and shall not ----------- permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided -------- that (A) the amount of (x) any Senior Debt 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 liabilities that are by their terms subordinated to the Securities or, in the case of liabilities of a Guarantor, the Security Guarantee of such Guarantor) that are assumed by the transferee of any such assets, or from which the Company and its Restricted Subsidiaries are released in writing by the creditor with respect thereto, 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 that is assumed by into cash (to the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businesses, (2cash received) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities within 180 days after receipt shall be deemed deemed, in each case, to be cash for purposes of this provision; provided, further, however, that this clause (ii) shall not -------- ------- ------- apply to any sale of Equity Interests of or other Investments in Unrestricted Subsidiaries. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (ia) to repay Indebtedness under Senior Debt, Debt of any Restricted Subsidiary or Pari Passu Debt (other than Debt owed to the Company or a Credit FacilitySubsidiary of the Company, and provided that if the Company -------- shall so reduce Pari Passu Debt, it will equally and ratably make an Asset Sale Offer (in accordance with the procedures set forth in Section 3.09 for an Asset Sale Offer) to all Holders), (b) to invest in properties and assets that will be used or useful in the business of the Company or any of its Subsidiaries or (iic) to the acquisition of Permitted Securitiesa controlling interest in another business, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets assets, in a Similar Business. Pending each case, that will be used or useful in the final application business of any such Net Proceeds, the Company may temporarily reduce Indebtedness under or any of its Restricted Subsidiaries; provided that if during such 360-day period the Company or a Credit Facility or otherwise invest -------- Restricted Subsidiary enters into a definitive agreement committing it to apply such Net Proceeds in any manner that is accordance with the requirements of clause (b) or (c) such 360-day period will be extended for a period not prohibited by this Indentureto exceed 180 days with respect to the amount of Net Proceeds so committed until required to be paid in accordance with such agreement (or, if earlier, until termination of such agreement). Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 10 million, the Company shall (i) make an offer to all holders Holders of 1997 Notes Securities, and (ii) 57 prepay, purchase or redeem (or make an offer to do so) any other Pari Passu Debt of the Company in accordance with provisions requiring the Company to prepay, purchase or redeem such Debt with the proceeds from any Asset Sales (or offer to do so), pro rata in proportion to the respective principal amounts (or accreted value, as applicable) of the Securities and such other Debt required to be prepaid, purchased or redeemed or tendered for, in the case of the Securities pursuant to such offer (an "Asset Sale Offer") ), to purchase the maximum principal amount of 1997 Notes Securities that may be purchased out of such pro rata portion of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the their principal amount thereof plus accrued and unpaid interest and Liquidated Damages (or, if prior to the Full Accretion Date, 100% of the Accreted Value thereof on the date of purchase, plus Liquidated Damages (if any) to 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 in the 1997 IndentureSection 3.09). To the extent that the aggregate principal amount (or, if prior to the Full Accretion Date, the aggregate Accreted Value) of 1997 Notes Securities and Pari Passu Debt tendered pursuant to an Asset Sale Offer or other offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount (or Accreted Value, as the case may be) of Notes or pari passu Indebtedness Securities surrendered by Holders thereof exceeds the amount pro rata portion of Remaining such Excess Proceeds in a Secondary Asset Sale Offerto be used to purchase Securities, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes Securities to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Sailors Inc
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8085% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, provided that (A) the amount of (a) any Senior Debt liabilities (as shown on the Company's or such Subsidiary's most recent balance sheet), of the Company or such Restricted any Subsidiary (other than contingent liabilities and liabilities that is are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee in of any such transaction assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability and (Bb) any consideration securities, notes or other obligations received by the Company or any such Restricted Subsidiary, as Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the case may be, that consists of Company or such Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businesses, (2cash received) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provisionSection 4.10. Within 365 180 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (ia) to repay Indebtedness of the Company under a Credit Facility, Facility or (iib) to the acquisition of Permitted Securities, acquire all or substantially all of the assets of one or more Similar Businessesof, or a majority of the making of Voting Stock of, another Permitted Business, (c) to make a capital expenditure or the acquisition of (d) to acquire other long-term assets that are used or useful in a Similar Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of 1997 other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes and such other pari passu Indebtedness 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, thereon to the date of purchase, in accordance with the procedures set forth in this IndentureIndenture and such other pari passu Indebtedness. To the extent that the aggregate amount any Excess Proceeds remain after consummation of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess ProceedsOffer, the Company may use any Remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes or and such other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of such offer to purchasean Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Windmere Durable Holdings Inc
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, provided that (A) the amount of (x) any Senior Debt 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 pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed from further liability and (y) any securities, notes or other obligations received by the transferee in Company or any such transaction and (B) any consideration received Restricted Subsidiary from such transferee that are promptly converted by the Company or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provisionSection 4.10. Any Restricted Payment that is permitted by Section 4.07 hereof will not be deemed to be an Asset Sale. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or such Restricted Subsidiary) may apply such Net Proceeds, at its option, either (ia) to repay Indebtedness under any Senior Debt of the Company or a Credit FacilityGuarantor, or (iib) to the acquisition of Permitted Securitiesa controlling interest in another business, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-long- term assets assets, in each case, in the same line of business as the Company and its Restricted Subsidiaries were engaged on the date hereof or in a Similar Related Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.such
Appears in 1 contract
Samples: Supplemental Indenture (Bulls Eye Marketing Inc /Ca/)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) except in the case of a Tower Asset Exchange, at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (x) any Senior Debt 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 pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed from further liability and (y) any securities, notes or other obligations received by the transferee in Company or any such transaction and (B) any consideration received Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all Subsidiary into cash within 20 days of the assets applicable Asset Sale (to the extent of one or more Similar Businessesthe cash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the applicable Restricted Subsidiary may apply such Net Proceeds, at its option, Proceeds to: (ia) to repay reduce Indebtedness under a Credit Facility, or ; (iib) to reduce other Indebtedness of any of the Company's Restricted Subsidiaries; (c) the acquisition of Permitted Securities, all or substantially all of the assets of one a Permitted Business; (d) the acquisition of Voting Stock of a Permitted Business from a Person that is not a Subsidiary of the Company; provided, that, after giving effect thereto, the Company or more Similar Businesses, its Restricted Subsidiary owns a majority of such Voting Stock; or (e) the making of a capital expenditure or the acquisition of other long-term assets that are used or useful in a Similar Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall be required to make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to all Holders of Notes and all holders of other senior Indebtedness of the Company containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets (such other senior Indebtedness of the Company, "Pari Passu Notes") to purchase the maximum principal amount (or accreted value, as applicable) of 1997 Notes and and Pari Passu Notes 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 (or accreted value, as applicable) thereof plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest Liquidated Damages thereon, if any, to the date of purchasepurchase (subject to the right of Holders of record on the relevant record date to receive interest and Liquidated Damages, if any, due on the relevant interest payment date), in accordance with the procedures set forth in this IndentureIndenture and any indenture governing the Pari Passu Notes. To the extent that the aggregate amount any Excess Proceeds remain after consummation of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess ProceedsOffer, the Company may use any Remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes or pari passu Indebtedness and Pari Passu Notes tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes and Pari Passu Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Crown Castle International Corp
Asset Sales. The Company shall will not, and shall will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (ia) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a Board Resolution set forth in an Officers' Officer's Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (iib) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, (I) Cash Equivalents and/or Marketable Securities; provided, however, that or (AII) the amount of any Senior Debt of the Company property or such Restricted Subsidiary that is assumed by the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) other long-term assets that are used or useful in one a Permitted Business, or more Similar Businesses the Capital Stock of any Person engaged in a Permitted Business if, as a result of the acquisition by the Company or any Subsidiary thereof, such Person becomes a Subsidiary Guarantor; provided, however, that the amount of (i) any liabilities (as shown on the Company's or such Subsidiary's most recent balance sheet), of the Company or such Subsidiary (other than contingent liabilities and liabilities of the Company that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability and (3ii) Permitted Securities shall any securities, notes or other obligations received by the Company or any such Subsidiary from such transferee that are immediately converted by the Company or such Subsidiary into cash (to the extent of the cash received), will be deemed to be 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 Equivalent portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax net proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Within 365 270 days after the receipt of any Net Proceeds from an Asset Sale, the Company may or any such Subsidiary shall apply such Net Proceeds, Proceeds at its optionoption (or to the extent the Company is required to apply such Net Proceeds pursuant to the terms of the New Credit Agreement), to (ia) repay Senior Debt (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (b) repay Pari Passu Indebtedness of the Company or any Subsidiary Guarantor (and to correspondingly reduce commitments with respect thereto), provided that if the Company or any Subsidiary Guarantor shall so repay Pari Passu Indebtedness, it will equally and ratably reduce Indebtedness under a Credit Facilitythe Notes if the Notes are then redeemable, or if the Notes may not then be redeemed, the Company shall make an offer in accordance with the procedures set forth in Section 3.10 hereof to all Holders of Notes to purchase at a price in cash equal to 100% of the principal amount thereof (ii) plus accrued and unpaid interest thereon to the acquisition date of Permitted Securitiespurchase), all such amount of Notes that would otherwise be redeemed or substantially all of the assets of one or more Similar Businesses(c) an investment in property, or the making of a capital expenditure or the acquisition of other long-term assets assets, in each case, of or from an entity that is engaged in a Similar Permitted Business, and in accordance with the terms of this Indenture. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility Designated Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.this
Appears in 1 contract
Samples: Duane Reade Inc
Asset Sales. The Company Each of the Issuers shall not, and shall not permit any of its their respective Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company such Issuer (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include and a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionDirectors) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by such Issuer or such Restricted Subsidiary is in the Company form of (A) cash, (B) assets useful in a Permitted Business not to exceed $30.0 million in the aggregate over the life of the Notes, or (C) Equity Interests representing a controlling interest in a Permitted Business not to exceed $30.0 million in the aggregate over the life of the Notes (collectively, the "Permitted Consideration"); provided that the amount of (x) any liabilities (as shown on such Issuer's or such Restricted Subsidiary's most recent balance sheet), of such Issuer or any Restricted Subsidiary (other than contingent liabilities (except to the extent reflected (or reserved for) on a balance sheet of the Issuers or any Restricted Subsidiary as of the case may be, consists date prior to the date of cash, Cash Equivalents and/or Marketable Securities; provided, however, consummation of such transaction) and liabilities that (Aare by their terms subordinated to the Notes or the Note Guarantees) that are assumed by the amount transferee of any Senior Debt of the Company such assets and (y) any securities, notes or other obligations received by such Issuer or any such Restricted Subsidiary from such transferee that are converted within 90 days by such Issuer or such Restricted Subsidiary that is assumed by into Permitted Consideration (to the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiaryextent so received), as the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash Permitted Consideration for purposes of this provision; and provided further, that the 80% limitation referred to above shall not apply to any Asset Sale in which the Permitted Consideration portion of the consideration received therefor is equal to or greater than what the net after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company Issuers may apply such Net Proceeds, at its their option, (ia) to repay Indebtedness under a Credit FacilitySenior Debt, or (iib) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets to be used in a Similar Permitted Business. Pending the final application of any such Net Proceeds, the Company Issuers may temporarily reduce Indebtedness under a the New Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 15.0 million, the Company Issuers shall be required to make an offer to all holders Holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in the 1997 IndentureSection 3.09. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company Issuers may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Senior Subordinated Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Senior Subordinated Notes to be purchased on a pro rata basis; provided, however, that the Issuers shall not be obligated to purchase Senior Subordinated Notes in denominations other than integral multiples of $1,000. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Indenture (Foamex International Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless (i) the Company (or the 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 (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8085% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, provided that (A) the amount of (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Senior Debt Subordinated Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction from further liability and (Bb) any consideration notes or other obligations received by the Company or such Restricted Subsidiary, as Subsidiary from such transferee that are immediately converted by the case may be, that consists of Company or such Restricted Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businesses, (2cash received) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 270 days after the receipt of any Net Proceeds from an Asset Sale, the Company or such Restricted Subsidiary may apply such Net Proceeds, at its option, Proceeds (i) to repay Indebtedness under a Credit Facilitypermanently reduce Senior Debt of the Company or such Restricted Subsidiary (and to correspondingly reduce commitments with respect thereto), or (ii) to the acquisition of Permitted Securities, all make capital expenditures or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other acquire long-term assets in the same line of business as the Company was engaged in immediately prior to such Asset Sale or, in the case of a Similar Businesssale of accounts receivable in connection with any accounts receivable financing, for working capital purposes. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 million5.0 million (an "Excess Proceeds Offer Triggering Event"), the Company shall make an offer to all holders Holders of 1997 Senior Subordinated Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Senior Subordinated Notes 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 unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in the 1997 IndentureSection 3.09 hereof and this Section 4.10. To the extent that the aggregate amount of 1997 Senior Subordinated Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining remaining Excess Proceeds for general corporate purposespurposes (subject to the restrictions of this Indenture). If the aggregate principal amount of Senior Subordinated Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Senior Subordinated Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. The occurrence of an Excess Proceeds Offer Triggering Event could result in a default under the Senior Debt of the Company.
Appears in 1 contract
Samples: Indenture (Fonda Group Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale in excess of $1,000,000 unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value value, of the assets or Equity Interests sold or otherwise disposed of and, in the case of a lease of assets, a lease providing for rent and other conditions which are no less favorable to the Company (or such Subsidiary, as the case may be) in any material respect than the then prevailing market conditions (evidenced in each case by a resolution of the Board of Directors of such entity set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% (100% in the case of lease payments) of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (x) any Senior Debt liabilities (as shown on the Company's or such Subsidiary's most recent balance sheet or in the notes thereto, but excluding contingent liabilities and trade payables) of the Company or such Restricted any Subsidiary (other than liabilities that is are by their terms subordinated to the Notes or any Guarantee thereof) that are assumed by the transferee in of any such transaction assets and from which the Company or such Subsidiary are unconditionally released from liability and (By) any consideration notes, securities or other obligations received by the Company or any such Restricted SubsidiarySubsidiary from such transferee that are promptly, as but in no event more than 30 days after receipt, converted by the case may be, that consists of Company or such Subsidiary into cash shall (1) all or substantially all to the extent of the assets of one or more Similar Businesses, (2cash received) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after provision and the receipt of such cash shall be treated as cash received from the Asset Sale for which such Notes or obligations were received. The Company or any of its Subsidiaries may apply the Net Proceeds from an each Asset Sale, the Company may apply such Net Proceeds, at its option, within 360 days after the consummation of such Asset Sale, (ia) to repay permanently reduce any Senior Indebtedness, Guarantor Senior Indebtedness under or, in the case of an Asset Sale by a Credit FacilityForeign Subsidiary, or to permanently reduce Indebtedness of such Foreign Subsidiary (iiand in the case of any senior revolving indebtedness to correspondingly permanently reduce commitments with respect thereto), (b) to make capital expenditures, for the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure another business or the acquisition of other long-term assets assets, in each case, in the same or a Similar BusinessRelated Business or (c) to reimburse the Company or its Subsidiaries for expenditures made, and costs incurred, to repair, rebuild, replace or restore property subject to loss, damage or taking to the extent that the Net Proceeds consist of insurance proceeds received on account of such loss, damage or taking. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.Senior
Appears in 1 contract
Samples: Steel Heddle International Inc
Asset Sales. The Company shall Borrower will not, and shall will not permit any Restricted Subsidiary to, and Holdings will not permit Public Sector to, (i) sell, transfer, lease, license, abandon, allow to lapse or be invalidated or otherwise dispose (including pursuant to a division) of any asset, including any Equity Interest owned by it or (ii) permit any Restricted Subsidiary to issue any additional Equity Interest in such Restricted Subsidiary (other than issuing directors’ qualifying shares, nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law and other than issuing Equity Interests to the Borrower or a Restricted Subsidiary in compliance with Section 6.04(c)) (each, a “Disposition” and the term “Dispose” as a verb has the corresponding meaning), except: (a) Dispositions of obsolete, damaged, used, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Dispositions of property no longer used or useful, or economically practicable to maintain, in the conduct of the business of the Borrower and its Restricted Subsidiaries to(including allowing any registration or application for registration of any Intellectual Property that is no longer used or useful to lapse, consummate go abandoned, or be invalidated); (b) Dispositions of inventory and other assets in the ordinary course of business and immaterial assets (considered in the aggregate) in the ordinary course of business; (c) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) an Asset Sale unless amount equal to Net Proceeds of such Disposition are promptly applied to the purchase price of such replacement property; (d) Dispositions of property to the Borrower or a Restricted Subsidiary; provided that if the transferor in such a transaction is a Loan Party, then (i) the Company transferee must be a Loan Party, (or the Restricted Subsidiary, as the case may beii) receives consideration at the time of such Asset Sale at least equal to the extent constituting an Investment, such Investment must be a Permitted Investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 6.04 or (iii) to the extent constituting a Disposition to a Restricted Subsidiary that is not a Loan Party, such Disposition is for fair market value (evidenced as determined in good faith by an Officers' Certificate delivered the Borrower) and any promissory note or other non-cash consideration received in respect thereof is a permitted investment in a Restricted Subsidiary that is not a Loan Party in accordance with Section 6.04; -153- (e) Dispositions permitted by Section 6.03 and Investments permitted by Section 6.04, Restricted Payments permitted by Section 6.07 and Liens permitted by Section 6.02; (f) Dispositions of property pursuant to sale and leaseback transactions permitted by Section 6.06 hereto; (g) Dispositions of Permitted Investments; (h) Dispositions of accounts receivable in connection with the Trustee which will include a resolution of the Board of Directors collection or compromise thereof (including sales to factors or other third parties); (i) leases, subleases, service agreements, product sales, abandonments, licenses, sublicenses or other disposals (including, with respect to such of Intellectual Property, non-exclusive licenses and sublicenses only), in each case that do not materially interfere with the business of the Borrower and its Restricted Subsidiaries, taken as a whole; (j) transfers of property subject to Casualty Events; (k) Dispositions of property to Persons other than Restricted Subsidiaries (including the sale or issuance of Equity Interests of a Restricted Subsidiary) for fair market value (as determined by a Responsible Officer of the Borrower in the event such Asset Sale involves aggregate consideration good faith) not otherwise permitted under this Section 6.05; provided that with respect to any Disposition pursuant to this clause (k) for a purchase price in excess of (x) with respect to any single transaction or series of related transactions, the greater of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of 6,250,000 and (ii) at least 805.0% of the Consolidated EBITDA as of the most recently ended Test Period, or (y) with respect to all other Dispositions in any fiscal year not excluded from the requirements of this proviso pursuant to the immediately preceding subclause (x), the greater of $12,500,000 and 10.0% of the Consolidated EBITDA as of the most recently ended Test Period, the Borrower or any Restricted Subsidiary shall receive not less than 75% of such consideration therefor received by in the Company form of cash or such Restricted Subsidiary, as the case may be, consists of cash, Cash Equivalents and/or Marketable SecuritiesPermitted Investments; provided, however, that solely for the purposes of this clause (k), (A) any liabilities (as shown on the amount of any Senior Debt most recent balance sheet of the Company Borrower or such Restricted Subsidiary that is assumed by or in the transferee in any such transaction and (Bfootnotes thereto) any consideration received by of the Company Borrower or such Restricted Subsidiary, as other than liabilities that are by their terms subordinated in right of payment to the case may beLoan Document Obligations, that consists of (1) all or substantially are assumed by the transferee with respect to the applicable Disposition and for which the Borrower and all of the assets of one or more Similar BusinessesRestricted Subsidiaries shall have been validly released by all applicable creditors in writing, shall be deemed to be cash, (2B) any securities, notes or other long-term obligations or assets received by the Borrower or such Restricted Subsidiary from such transferee that are used converted by the Borrower or useful such Restricted Subsidiary into cash or Permitted Investments (to the extent of the cash or Permitted Investments received) within one hundred and eighty (180) days following the closing of the applicable Disposition, shall be deemed to be cash, (C) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Disposition (other than intercompany debt owed to the Borrower or its Restricted Subsidiaries), to the extent that the Borrower and all of the Restricted Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in one or more Similar Businesses and (3) Permitted Securities connection with such Disposition, shall be deemed to be cash for purposes and (D) any Designated Non-Cash Consideration received by the Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate fair market value (as determined by a Responsible Officer of the Borrower in good faith), taken together with all other Designated Non-Cash Consideration received pursuant to this provision. Within 365 days after clause (k) that is at that time outstanding, not in excess of the greater of $25,000,000 and 20.0% of Consolidated EBITDA at the time of the receipt of any Net Proceeds from an Asset Salesuch Designated Non-Cash Consideration, with the Company may apply such Net Proceedsfair market value (as determined in good faith by the Borrower) of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.cash;
Appears in 1 contract
Asset Sales. The Company shall notSubject to the provisions of the Intercreditor Agreement (if it is in full force and effect), and shall not permit within one (1) Business Day of the date of receipt by any Credit Party or any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration Net Proceeds in excess of $5.0 million1,000,000 from any voluntary or involuntary Disposition by any Credit Party or any of its Subsidiaries of assets (excluding Dispositions which qualify as Permitted Dispositions under clauses (a), (b), (c), (d), (e), (f), (i), (j) and (l) of the assets definition of “Permitted Dispositions”, but including casualty losses or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of any Senior Debt of the Company or such Restricted Subsidiary that is assumed by the transferee condemnations in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Salerespect thereof), the Company may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to Borrower shall prepay the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum outstanding principal amount of 1997 Notes that may be purchased out of the Excess Proceeds, at an offer price in cash Loans in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess such Net Proceeds ("Remaining Excess Proceeds"including condemnation awards and payments in lieu thereof) and the sum of received by such Person in connection with such Dispositions; provided that, so long as (A) such amount no Default or Event of Remaining Excess Proceeds Default shall have occurred and is continuing or would result therefrom, (B) the Remaining Excess Borrower shall have given the Administrative Agent prior written notice of the Borrower’s intention to apply such monies to the costs of replacement of the properties or assets that are the subject of such Disposition or the cost of purchase or construction of other assets useful in the business of Borrower or its Subsidiaries, (C) pending application thereof, in the case of Net Proceeds resulting from any subsequent Asset Sale Offers exceeds $3.0 millionthe Disposition of Term Priority Collateral, the Company will monies are held in a Term Priority Collateral Account in which the Administrative Agent has a perfected first-priority security interest, and (D) the Borrower or its Subsidiaries, as applicable, complete such replacement, purchase, or construction, or enter into a binding commitment with respect to such replacement, purchase or construction, in each case within 365 days after the initial receipt of such monies, then the Borrower shall have the option to apply such monies to the costs of replacement of the assets that are the subject of such sale or disposition, unless and to the extent that such 365-day period shall have expired without such replacement, purchase, or construction being made or completed (or, in the case of replacements, purchases or construction to which the Borrower and Subsidiaries have committed within such 365-day period, to the extent that such replacement, purchase or constriction shall not have been made or completed within 180 days from the end of such 365-day period), in which case, any Net Proceeds not so applied shall be required paid to the Administrative Agent and applied to the prepayment of the Loans; provided, however, that (i) Borrower and its Subsidiaries shall not have the right to use such Net Proceeds to make an offer such replacements, purchases, or construction in excess of $10,000,000 in any given fiscal year and (ii) to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes extent the Disposition giving rise to such Net Proceeds was Collateral, such reinvestment is concurrently added to the Collateral; provided, further, that, by its termsif at the time that any such prepayment would be required, requires the Company any Credit Party is required to offer to repurchase or to prepay any Other Pari Passu Lien Obligations (or any Permitted Refinancing Indebtedness in respect thereof that is secured by the Collateral on a pari passu basis with the Obligations) pursuant to the terms of the documentation governing such Indebtedness with such Remaining Excess Net Proceeds (a "Secondary Asset Sale Offer"such Other Pari Passu Lien Obligations (or any Permitted Refinancing Indebtedness in respect thereof) required to purchase be offered to be so repurchased or prepaid, “Other Applicable Indebtedness”), then the maximum principal amount of Notes and pari passu Indebtedness that Borrower may be purchased out of apply such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Net Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness outstanding at such time (and in the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion case of such offer Other Applicable Indebtedness, at a prepayment price of no more than 100% of principal amount); provided that the portion of such Net Proceeds allocated to purchase, the Other Applicable Indebtedness shall not exceed the amount of Excess such Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be reset at zeroallocated to the Loans in accordance with the terms hereof) to the prepayment of the Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 5.2(a) shall be reduced by the amount of such Other Applicable Indebtedness so repaid with such Net Proceeds and to the extent the holders of Other Applicable Indebtedness decline to have such Other Applicable Indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Loans in accordance with the terms hereof. Nothing contained in this Section 5.2(a) shall permit any Credit Party or any of its Subsidiaries to sell or otherwise dispose of any assets other than in accordance with Section 10.4.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, engage in or consummate an Asset Sale unless (i) the Company (or the 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 Board of Directors in good faith, whose determination shall be conclusive evidence thereof and shall be evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the form of cash or Cash Equivalents other than in the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of any Senior Debt of where the Company or such Restricted Subsidiary is undertaking a Permitted Asset Swap; provided that is the amount of (x) 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 in of any such transaction assets pursuant to a customary agreement that releases the Company or such Restricted Subsidiary from further liability and (By) any consideration securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted within 15 days by the Company or such Restricted Subsidiary, as the case may be, that consists of Subsidiary into cash (1) all or substantially all to extent of the assets of one or more Similar Businesses, (2cash received) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or its Restricted Subsidiaries may apply such Net Proceeds, at its option, (ia) to repay Indebtedness under a Credit Facilitypermanently reduce Senior Debt, or (iib) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businessesinvestment in, or the making of a capital expenditure or the acquisition of of, other long-term property or assets in each case used or useable in a Similar Permitted Business, or Capital Stock of any Person primarily engaged in a Permitted Business if, as a result of the investment in or acquisition by the Company or any Restricted Subsidiary thereof, such Person becomes a Restricted Subsidiary, or (c) a combination of the uses described in clauses (a) and (b). Pending the final application of any such Net Proceeds, the Company or its Restricted Subsidiaries may temporarily reduce Indebtedness under a Credit Facility Senior Debt or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales Sales, that are not applied or invested as provided in the first sentence of this paragraph shall within the 360-day period after receipt of such Net Proceeds will be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 millionmillion (an "Asset Sale Offering Triggering Event"), the Company shall will be required to make an offer to all Holders of Notes and, to the extent required by the terms of any Pari Passu Indebtedness to all holders of 1997 Notes such Pari Passu Indebtedness (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes and any such Pari Passu Indebtedness 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this IndentureSection 3.09 hereof or such Pari Passu Indebtedness, as applicable. To the extent that the aggregate principal amount of Notes or pari passu and any such Pari Passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess Proceeds, the Company or its Restricted Subsidiaries may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu and any such Pari Passu Indebtedness surrendered by Holders holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Laralev Inc
Asset Sales. The Company Partnership shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) sell, lease, convey or otherwise dispose of any assets (including by way of a Sale and Leaseback Transaction) other than sales of inventory in the Company ordinary course of business and consistent with past practice (provided, that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Partnership shall be governed by the provisions of this Indenture set forth under Section 10.17 hereof or Article III hereof and not by the provisions of this Section 10.16) or (ii) issue or sell Capital Stock of any of its Restricted Subsidiaries, in the case of either clause (i) or (ii) above, whether in a single transaction or a series of related transactions (each of the foregoing, an “Asset Sale”), unless (x) the Partnership (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced as determined in good faith by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionGeneral Partner) of the assets or Equity Interests issued or sold or otherwise disposed of and (iiy) at least 80% of the consideration therefor received by the Company Partnership or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, that the amount of (A) any liabilities (as shown on the amount of any Senior Debt of the Company Partnership’s or such Restricted Subsidiary’s most recent balance sheet or in the notes thereto) of the Partnership or any Restricted Subsidiary that is are assumed by the transferee in of any such transaction assets and (B) any consideration notes or other obligations received by the Company Partnership or any such Restricted Subsidiary from such transferee that are immediately converted by the Partnership or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision; and provided, further, that the 80% limitation referred to in this clause (y) shall not apply to any Asset Sale in which the cash portion of the consideration received therefrom, determined in accordance with the foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Within 365 Notwithstanding the foregoing, Asset Sales shall not be deemed to include (1) any transfer of assets or Capital Stock by the Partnership or any of its Restricted Subsidiaries to a Wholly-Owned Restricted Subsidiary of the Partnership, (2) any transfer of assets or Capital Stock by the Partnership or any of its Restricted Subsidiaries to any Person in exchange for other assets used in a line of business permitted under Section 10.15 hereof and having a fair market value (as determined in good faith by the General Partner) not less than that of the assets so transferred and (3) any transfer of assets pursuant to a Permitted Investment. In the event that the aggregate Net Proceeds received by the Partnership or any of its Restricted Subsidiaries from one or more Assets Sales in any fiscal year of the Partnership exceed $10 million, within 270 days after the receipt of any date such aggregate Net Proceeds from an Asset Saleexceed such amount (or such longer period as may be required to comply with any agreement in effect on April 19, 1995), the Company may apply such Net ProceedsPartnership, at its option, shall apply the amount of such aggregate Net Proceeds in excess of $10 million (iless the amount of any such Net Proceeds previously applied during such fiscal year for the purposes set forth in clauses (a) or (b) below) to repay (a) reduce Indebtedness under of a Credit Facility, Restricted Subsidiary (with a permanent reduction of availability in the case of revolving Indebtedness) or (iib) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term make an investment in assets in a Similar Businessthe same line of business the Partnership was engaged in on April 19, 1995. Pending the final application of any such Net Proceeds, the Company Partnership or any Restricted Subsidiary may temporarily reduce Indebtedness borrowings under a the Bank Credit Facility Facilities or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any such Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "“Excess Proceeds". .” When the aggregate amount of Excess Proceeds exceeds $10.0 5 million, the Company Issuers shall make an offer to all holders Holders of 1997 Notes (an "“Asset Sale Offer"”) to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereoninterest, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness Securities tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess Proceeds, the Company Partnership or any Restricted Subsidiary may use any Remaining Excess Proceeds such deficiency for general corporate business purposes. If the aggregate principal amount of Notes or pari passu Indebtedness Securities surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes Securities to be purchased on a pro rata basis. Notwithstanding the foregoing, if the Issuers are required to commence an Asset Sale Offer at any time when the Issuers have securities outstanding ranking pari passu in right of payment with the Notes and the terms of those securities provide that a similar offer must be made with respect to those other securities, then the Asset Sale Offer for the Securities will be made concurrently with the other offers and securities of each issue will be accepted on a pro rata basis in proportion to the aggregate principal amount of securities of each issue which their holders elect to have purchased. Upon completion of such offer to purchasethe Asset Sale Offer, the amount of Excess Proceeds shall will be reset at zero.
Appears in 1 contract
Samples: Indenture (Amerigas Finance Corp)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (x) any Senior Debt liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) or Indebtedness of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed from further liability and (y) any securities, notes or other obligations received by the transferee in Company or any such transaction and (B) any consideration received Restricted Subsidiary from such transferee that are promptly converted by the Company or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provisionparagraph. Within 365 360 days after the receipt of any Net Proceeds Available Cash from an any Asset Sale, the Company may or any Restricted Subsidiary shall apply such Net ProceedsAvailable Cash, at its option, (ia) 41 42 to repay Senior Debt (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) of the Company or any Restricted Subsidiary or, in the case of any Asset Sale involving assets of any Restricted Subsidiary that is not a Guarantor, to repay any Indebtedness under a Credit Facilityof such Restricted Subsidiary, or (iib) to invest in assets and property (other than notes, bonds, obligations and securities) which in the acquisition of Permitted Securities, all or substantially all good faith judgment of the assets Board of one Directors of the Company will constitute or more Similar Businesses, or the making be a part of a capital expenditure or the acquisition of other long-term assets in a Similar BusinessGaming Business immediately following such transaction. Pending the final application of any such Net ProceedsAvailable Cash, the Company may temporarily reduce Indebtedness under a Credit Facility Senior Debt or otherwise invest such Net Proceeds Available Cash in any manner that is not prohibited by this Indenture. Notwithstanding the foregoing provisions of this paragraph, the Company and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance with this paragraph except to the extent that the aggregate Net Available Cash from all Asset Sales which is not applied in accordance with this paragraph exceeds $5.0 million. Any Net Proceeds Available Cash (other than Net Available Cash not so applied pursuant to the preceding sentence) from Asset Sales that are is not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall will be required to make an offer to all holders Holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess Proceeds, the Company and any Restricted Subsidiary may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Indenture (Alliance Gaming Corp)
Asset Sales. The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company Issuer (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include and a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionDirectors) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company Issuer or such Restricted Subsidiary is in the form of (A) cash, (B) assets useful in a Permitted Business not to exceed $[50.0] million in the aggregate over the life of the Notes, and/or (C) Equity Interests representing a controlling interest in a Permitted Business not to exceed $[50.0] million in the aggregate over the life of the Notes (collectively, the "Permitted Consideration"); provided that the amount of (x) any liabilities (as shown on the Issuer's or such Restricted Subsidiary's most recent balance sheet), of the Issuer or any Restricted Subsidiary (other than contingent liabilities (except to the extent reflected (or reserved for) on a balance sheet of the Issuer or any Restricted Subsidiary as of the case may be, consists date prior to the date of cash, Cash Equivalents and/or Marketable Securities; provided, however, consummation of such transaction) and liabilities that (A) are by their terms subordinated to the amount Notes or the Note Guaranties that are assumed by the transferee of any Senior Debt of such assets and (y) any securities, notes or other obligations received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted within 90 days by the Issuer or such Restricted Subsidiary that is assumed by into Permitted Consideration (to the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiaryextent so received), as the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash Permitted Consideration for purposes of this provision; and provided further, that the 80% limitation referred to above shall not apply to any Asset Sale in which the Permitted Consideration portion of the consideration received therefor is equal to or greater than what the net after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Within 365 [730] days after the receipt of any Net Proceeds from an Asset Sale, the Company Issuer may apply such Net Proceeds, Proceeds at its their option, (ia) to repay Indebtedness under a Credit FacilitySenior Debt, or (iib) to secured letter of credit obligations, (c) to the acquisition of assets to be used in a Permitted SecuritiesBusiness (d) to an investment in properties or assets that replace the properties and assets that are the subject of such Asset Sale and/or (e) in the case of a sale of a bowling center or bowling centers, all deem such Net Proceeds to have been applied pursuant to the immediately preceding clause (d) to the extent of any expenditures made to acquire or substantially all of the assets of construct one or more Similar Businesses, or bowling centers in the making general vicinity of a capital expenditure or the acquisition bowling centers(s) sold within [730] days preceding the date of other long-term assets in a Similar Businessthe Asset Sale. Pending the final application of any such Net Proceeds, the Company Issuer may temporarily reduce Indebtedness under a the New Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 [15.0] million, the Company Issuer shall be required to make an offer to all holders Holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest interest, if any, thereon to the date of purchase, in accordance with the procedures set forth in the 1997 IndentureSection 4.15. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company Issuer may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis; provided however, that the Issuer shall not be obligated to purchase Notes in denominations other than integral multiples of $1,000 or less if the purchase constitutes the remaining portion of the Notes. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of any Senior Debt of the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes (including, without limitation, the May 1998 Notes and the December 1998 Notes) that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Indenture (L 3 Communications Corp)
Asset Sales. The Company shall may not, and shall may not permit any Restricted Subsidiary to, directly or indirectly, consummate an Asset Sale (including the sale of any of the Capital Stock of any Restricted Subsidiary) providing for Net Proceeds in excess of $5,000,000 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: (a) an investment in another asset or business in the same line of business as, or a line of business similar to that of, the line of business of the Company and its Restricted 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 (the "Asset Sale Disposition Date"); (b) to reimburse the Company or its Subsidiaries for expenditures made, and costs incurred, to repair, rebuild, replace or restore property subject to loss, damage or taking to the extent that the Net Proceeds consist of insurance proceeds received on account of such loss, damage or taking; (c) the purchase, redemption or other prepayment or repayment of outstanding Senior Indebtedness of the Company or Indebtedness of the Company's Restricted Subsidiaries on or prior to the 365th day following the Asset Sale Disposition Date; or (d) an Offer expiring on or prior to the Purchase Date (as defined herein). In addition, the Company may not, and may not permit any Restricted Subsidiary to, directly or indirectly, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor thereof received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securitiescash equivalents or marketable securities; providedprovided that, howeversolely for purposes of calculating such 75% of the consideration, that (A) the amount of (x) any Senior Debt liabilities (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 Notes) 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 30 days after receipt, converted by the Company or such Restricted Subsidiary that is assumed by into cash (to the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash and cash equivalents for purposes of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from any Asset Sales Sale that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 million10,000,000 (such date being an "Asset Sale Trigger Date"), the Company shall make an offer Offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 the Notes then outstanding 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 thereof, plus any accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereonLiquidated Damages, if any, to the date of purchasePurchase Date, in accordance with the procedures set forth in this Indenture. 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 Net Proceeds so affected will not be required to be applied as described in this or the preceding paragraph, but may be retained for so long, but only for so long, as the applicable local law prohibits repatriation to the United States. To the extent that the aggregate amount any Excess Proceeds remain after completion of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceedsan Offer, the Company may use any Remaining Excess Proceeds such remaining amount for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchasean Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Jackson Products Inc
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless (i) the Company (or the 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 (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionResolution ) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, (x) cash or Cash Equivalents and/or Marketable Securitiesor (y) a controlling interest in another business or fixed or other long-term assets, in each case, in a Similar Business; provided, however, provided that (A) the amount of (a) any Senior Debt liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that is are by their terms subordinated to the Notes or any Guarantee thereof) that are assumed by the transferee in of any such transaction assets or Equity Interests such that the Company or such Restricted Subsidiary are released from further liability and (Bb) any consideration securities, notes or other obligations received by the Company or such Restricted Subsidiary, as Subsidiary from such transferee that are converted by the case may be, that consists Company or such Restricted Subsidiary into cash within 90 days or are guaranteed (by means of a letter of credit or otherwise) by an institution specified in the definition of “Cash Equivalents” (1) all or substantially all to the extent of the assets of one cash received or more Similar Businesses, (2the obligations so guaranteed) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash or Cash Equivalents for purposes of this provisionSection 4.16, subject to application as provided in the following paragraph. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net ProceedsCompany, at its option, may (i) apply such Net Proceeds to permanently prepay, repay Indebtedness under a Credit Facility, or reduce any Senior Debt of the Company (and to correspondingly reduce commitments with respect thereto in the case of revolving borrowings) or (ii) apply such Net Proceeds to the acquisition of Permitted Securitiesa controlling interest in another business, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure in or the acquisition of other long-term assets that are used or useful in each case, in a Similar BusinessBusiness (or enter into a binding agreement to purchase such business or assets or make such capital expenditure; provided that if such binding agreement ceases to be in full force and effect during such 365-day period, the Company may enter into another such binding agreement; provided further that if such binding agreement ceases to be in full force and effect after such 365-day period, any portion of the Net Proceeds of such Asset Sale not applied or invested pursuant to such binding agreement shall constitute Excess Proceeds). Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "“Excess Proceeds". .” When the aggregate amount of Excess Proceeds exceeds $10.0 35 million, the Company shall make an offer to all Holders of Notes (and holders of 1997 Notes other Indebtedness of the Company to the extent required by the terms of such other Indebtedness) (an "“Asset Sale Offer"”) to purchase the maximum principal amount of 1997 Notes (and such other Indebtedness) that may be purchased out of does not exceed the Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and unpaid interest and Additional Interest, if any, thereon to the date of purchase, in accordance with the procedures set forth in the 1997 IndentureSection 3.10 hereof. To the extent that the aggregate principal amount of 1997 Notes (and such other Indebtedness) tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof (and such other Indebtedness) tendered exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase Notes (and such Indebtedness on a pro rata basis and the Trustee shall select the Notes other Indebtedness) to be purchased shall be selected on a pro rata basis. Upon completion of such offer to purchasean Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The Asset Sale Offer must be commenced within 60 days following the date on which the aggregate amount of Excess Proceeds exceeds $35 million and remain open for at least 30 and not more than 40 days (unless otherwise required by applicable law). The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer.
Appears in 1 contract
Samples: Indenture (Vail Resorts Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate a Board Resolution delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (x) any Senior Debt 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 pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed from further liability and (y) any securities, notes or other obligations received by the transferee in Company or any such transaction and Restricted Subsidiary from such transferee that are contemporaneously (Bsubject to ordinary settlement periods) any consideration received converted by the Company or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 270 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (ia) to repay Indebtedness under invest in properties and assets that will be used or useful in a Credit FacilityPermitted Business, or (iib) to the acquisition of Permitted Securitiesa controlling interest in another business, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets assets, in each case, in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Permitted Business or (c) to repay Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this IndentureFacility. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Available Asset Sale Proceeds". ." When the aggregate amount of Excess Available Asset Sale Proceeds exceeds $10.0 5.0 million, the Company shall be required to make an offer to all holders Holders of 1997 Notes (an "Asset Sale OfferEXCESS PROCEEDS OFFER") pursuant to Section 3.09 hereof to purchase the maximum principal amount of 1997 Notes that may be purchased out of the Excess Available Asset Sale Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this IndentureSection 3.09 hereof. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary any Available Asset Sale Offer is less than the Remaining Proceeds remain after consummation of an Excess ProceedsProceeds Offer, the Company may use any Remaining Excess such Available Asset Sale Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness tendered into such Excess Proceeds Offer surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Available Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basisbasis pursuant to Section 3.09 hereof. Upon completion of such offer to purchase, the amount of Excess Available Asset Sale Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Gni Group Inc /De/
Asset Sales. The Company shall Borrower will not, and shall will not permit any of its Restricted the Guarantors or their respective Subsidiaries to, consummate an Asset Sale unless sell, transfer or otherwise dispose of (ia) the Company all or substantially all of their assets (provided that any direct or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution indirect Subsidiary of the Board of Directors with respect to such fair market value in REIT (except for the event such Asset Sale involves aggregate consideration in excess of $5.0 millionBorrower or General Partner) of the assets or Equity Interests issued or sold may sell, transfer or otherwise disposed dispose of and (ii) at least 80% all of its assets as permitted by this Agreement provided that the consideration therefor received aggregate of all sales by the Company Borrower, the Guarantors and their respective Subsidiaries shall not constitute a sale, transfer or such Restricted Subsidiary, as the case may be, consists disposition of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of any Senior Debt of the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all of the assets of one the Borrower and its Subsidiaries) or more Similar Businesses(b) any material asset other than pursuant to a bona fide arm’s length transaction. Restriction on Prepayment of Indebtedness . The Borrower and the Guarantors will not, and will not permit their respective Subsidiaries to, (2a) during the existence of any Default or Event of Default, prepay, redeem, defease, purchase or otherwise retire the principal amount, in whole or in part, of any Indebtedness other long-term assets than the Obligations; provided, that are used or useful in one or more Similar Businesses the foregoing shall not prohibit (x) the prepayment of Indebtedness which is financed solely from the proceeds of a new loan which would otherwise be permitted by the terms of §8.1, and (3y) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Saleprepayment, the Company may apply such Net Proceedsredemption, at its option, (i) to repay Indebtedness under a Credit Facility, defeasance or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% retirement of the principal amount thereof plus accrued and unpaid interest to of Indebtedness secured by Real Estate which is satisfied solely from the date proceeds of purchase, in accordance with a sale of the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less Real Estate securing such Indebtedness; or (b) modify any document evidencing any Indebtedness (other than the remaining Excess Proceeds ("Remaining Excess Proceeds"Obligations) and to accelerate the sum maturity date or required payments of (A) such amount principal of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase during the maximum principal amount existence of Notes and pari passu Indebtedness that may be purchased out an Event of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zeroDefault.
Appears in 1 contract
Samples: Term Loan Agreement (Condor Hospitality Trust, Inc.)
Asset Sales. The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company Issuer (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Officer's Certificate delivered to the Trustee which will include and a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionDirectors) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company Issuer or such Restricted Subsidiary is in the form of (A) cash, (B) assets useful in a Permitted Business not to exceed $50.0 million in the aggregate over the life of the Notes, and/or (C) Equity Interests representing a controlling interest in a Permitted Business not to exceed $50.0 million in the aggregate over the life of the Notes (collectively, the "Permitted Consideration"); provided that the amount of (x) any liabilities (as shown on the Issuer's or such Restricted Subsidiary's most recent balance sheet), of the Issuer or any Restricted Subsidiary (other than contingent liabilities (except to the extent reflected (or reserved for) on a balance sheet of the Issuer or any Restricted Subsidiary as of the case may be, consists date prior to the date of cash, Cash Equivalents and/or Marketable Securities; provided, however, consummation of such transaction) and liabilities that (A) are by their terms subordinated to the amount Notes or the Note Guaranties that are assumed by the transferee of any Senior Debt of such assets) and (y) any securities, notes or other obligations received by the Company Issuer or any such Restricted Subsidiary from such transferee that are converted within 90 days by the Issuer or such Restricted Subsidiary that is assumed by into Permitted Consideration (to the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiaryextent so received), as the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash Permitted Consideration for purposes of this provision; and provided further, that the 80% limitation referred to above shall not apply to any Asset Sale in which the Permitted Consideration portion of the consideration received therefor is equal to or greater than what the net after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company Issuer may apply such Net Proceeds, Proceeds at its option, (ia) to repay Indebtedness under a Senior Debt, (b) to secure Letter of Credit FacilityObligations to the extent letters of credit have not been drawn upon or returned unwithdrawn, or (iic) to the acquisition of assets to be used in a Permitted SecuritiesBusiness and/or (d) to an investment in properties or assets that replace the properties and assets that are the subject of such Asset Sale and/or, all in the case of a sale of a bowling center or substantially all bowling centers, may deem such Net Proceeds to have been applied pursuant to this clause (d) to the extent of the assets of any expenditures made to acquire, renovate, expand or construct one or more Similar Businesses, or bowling centers within 365 days preceding the making date of a capital expenditure or the acquisition of other long-term assets in a Similar BusinessAsset Sale. Pending the final application of any such Net Proceeds, the Company Issuer may temporarily reduce Indebtedness under a the New Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 25.0 million, the Company Issuer shall be required to make an offer to all holders of 1997 Notes Holders (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest interest, if any, thereon to the date of purchase, in accordance with the procedures set forth in the 1997 IndentureSection 3.09. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company Issuer may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis; provided, however, that the Issuer shall not be obligated to purchase Notes in denominations other than integral multiples of $1,000. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. Notwithstanding anything to the contrary in this Section 4.10, the Issuer and its Subsidiaries may transfer assets in any Fiscal Year having a fair market value not in excess of $10,000,000 in the aggregate in connection with an exchange pursuant to Internal Revenue Code Section 1031 of such assets for like-kind assets to be used in the business of the Issuer and its Subsidiaries.
Appears in 1 contract
Samples: Amf Bowling Worldwide Inc
Asset Sales. The Company (a) No Indenture Obligor shall, nor shall not, and shall not it permit any of its Restricted Obligor Subsidiaries to, consummate an make any Asset Sale (other than to another Indenture Obligor or such other Subsidiary) unless (i) the Company (such Indenture Obligor or the 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 (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of of, and (ii) at least 8085% of the consideration therefor received by the Company such Indenture Obligor or such Restricted Subsidiary, as Subsidiary from such Asset Sale is in the case may be, consists form of cash, Cash Equivalents and/or Marketable cash (in Dollars) and no portion thereof shall consist of inventory or accounts receivable or other property that would become subject to a Lien held by any other creditor of such Indenture Obligor or of any such Subsidiary other than the Lenders or the Holders of the Securities; provided, however, that (A) the amount of any Senior Debt of the Company cash equivalent or note or other obligation received by such Indenture Obligor or such Restricted Subsidiary that is assumed by from the transferee in any such transaction and (B) any consideration received that is converted within 45 days by the Company such Indenture Obligor or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities Subsidiary into cash shall be deemed upon such conversion to be cash for purposes of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or ; (ii) to the acquisition of Permitted Securitiesextent such Asset Sale involves Collateral, all or substantially all (x) the consent of the assets of one or more Similar Businesses, or the making Holders of a capital expenditure or the acquisition majority of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes the Securities then Outstanding shall be obtained prior to the consummation of such sale and (y) PCI or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase cause the aggregate cash proceeds received by such Indebtedness on a pro rata basis and Indenture Obligor or such Subsidiary in respect of such Asset Sale which are allocated to the Trustee shall select Collateral, net of the Notes items set forth in clauses (i) through (iii) of the definition of Net Proceeds (the "Collateral Proceeds"), to be purchased on a pro rata basis. Upon completion of deposited with the Collateral Agent in the Intercreditor Collateral Account as and when received by such offer to purchase, Indenture Obligor or any such Subsidiary; and (iii) the amount of Excess Net Proceeds shall be reset at zeroreceived by such Indenture Obligor or such Subsidiary from any Asset Sale are applied in accordance with the following paragraphs.
Appears in 1 contract
Samples: Pioneer Companies Inc
Asset Sales. (a) The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate consummate, directly or indirectly, an Asset Sale unless unless: (i1) the Company (Issuer or the such Restricted Subsidiary, as the case may be) , receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to measured at the Trustee which will include a resolution time of the Board of Directors with respect contractually agreeing to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionSale) of the assets or Equity Interests issued or sold or otherwise disposed of of; and (ii2) except in the case of a Permitted Asset Swap, at least 8075.0% of the consideration therefor (measured at the time of contractually agreeing to such Asset Sale) for such Asset Sale, together with all other Asset Sales completed or contractually agreed upon since September 2, 2020 (on a cumulative basis), received (or to be received) by the Company Issuer or such Restricted Subsidiary, as the case may be, consists is in the form of cash, cash or Cash Equivalents and/or Marketable Securities; provided, however, that Equivalents. (b) Within 12 months after the later of (A) the amount date of any Senior Debt of the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction Asset Sale and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after the receipt of any Net Proceeds from an any Asset SaleSale (the “Asset Sale Proceeds Application Period”), the Company Issuer or such Restricted Subsidiary, at its option, may apply an amount equal to the Net Proceeds from such Net Asset Sale (the “Applicable Proceeds”), (1) to the extent the assets or property disposed of in the Asset Sale constituted Collateral, to repay (i) Obligations under the Notes or (ii) any Additional Equal Priority Obligations, and in each case, in the case of revolving obligations (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of pursuant to such Asset Sale constitute “borrowing base assets” thereunder), to correspondingly reduce commitments with respect thereto; (2) to the extent the assets or property disposed of in the Asset Sale did not constitute Collateral: (i) to repay (y) Obligations under the Notes or (z) any Additional Equal Priority Obligations, and in each case, in the case of revolving obligations (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of pursuant to such Asset Sale constitute “borrowing base assets” thereunder), to correspondingly reduce commitments with respect thereto; provided that if the Issuer or any Restricted Subsidiary shall repay any Additional Equal Priority Obligations pursuant to clause (z) above, the Issuer or such Restricted Subsidiary will either (A) reduce the aggregate principal amount of Obligations under the Notes on a ratable basis with any such Obligations under the Additional Equal Priority Obligations repaid pursuant to this clause (2)(i) by, at its option, (i1) redeeming Notes as provided under Article 3 and/or (2) purchasing Notes through open-market purchases or in privately negotiated transactions (which may be below par) and/or (B) make an offer (in accordance 127 with the provisions set forth below for an Asset Sale Offer) to repay Indebtedness all Holders to purchase their Notes on a ratable basis with any Obligations under a Credit Facilitythe Additional Equal Priority Obligations repaid pursuant to this clause (2)(i) for no less than 100.0% of the principal amount thereof, plus the amount of accrued and unpaid interest, if any, thereon (which offer shall be deemed to be an Asset Sale Offer for purposes hereof); or (ii) to repay Obligations under any Senior Indebtedness (other than any Senior Indebtedness referred to in clause (2)(i) above), and in the acquisition case of Permitted Securities, all or substantially all revolving obligations (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of one pursuant to such Asset Sale constitute “borrowing base assets” thereunder), to correspondingly reduce commitments with respect thereto; provided that the Issuer or more Similar Businesses, or such Restricted Subsidiary will either (A) reduce the making aggregate principal amount of Obligations under the Notes on a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of ratable basis with any such Net ProceedsSenior Indebtedness repaid pursuant to this clause (2)(ii) by, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested at its option, (1) redeeming Notes as provided under Article 3 and/or (2) purchasing Notes through open-market purchases or in the first sentence of this paragraph shall privately negotiated transactions (which may be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall below par) and/or (B) make an offer to all holders of 1997 Notes (in accordance with the provisions set forth below for an "Asset Sale Offer") to all Holders to purchase the maximum principal amount of 1997 their Notes that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal on a ratable basis with any Senior Indebtedness repaid pursuant to 100this clause (2)(ii) for no less than 100.0% of the principal amount thereof thereof, plus the amount of accrued and unpaid interest interest, if any, thereon (which offer shall be deemed to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to be an Asset Sale Offer is less than for purposes hereof); (3) to invest in the remaining Excess Proceeds business of the Issuer and its Subsidiaries, including ("Remaining Excess Proceeds"i) and any investment in Additional Assets, (ii) making capital expenditures in respect of assets used or useful in a Similar Business, (iii) any investment in any property or other assets that replace the sum businesses, properties and/or assets that are the subject of (A) such amount of Remaining Excess Proceeds Asset Sale and (Biv) in the Remaining Excess case of proceeds of sales of assets or property of a Qualified Liquefaction Development Entity, depositing such proceeds in a construction fund, escrow or similar account to be used solely for the purpose of capital expenditures of such entity or the acquisition, construction or improvement of assets of such entity; (4) to the extent the assets or property disposed of in the Asset Sale did not constitute Collateral, to repay Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Issuer or a Guarantor, and, in the case of revolving obligations (other than obligations in respect of any asset-based credit facility to the extent the assets sold or otherwise disposed of pursuant to such Asset Sale constitute “borrowing base assets” thereunder), to correspondingly reduce commitments with respect thereto; or (5) any combination of the foregoing; provided that, in the case of clause (3) above, a binding commitment or letter of intent shall be treated as a permitted application of the Applicable Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance such commitment or letter of intent so long as the Issuer or such Restricted Subsidiary enters into such commitment or letter of intent with the procedures set forth in this Indenture. To good faith expectation that such Applicable Proceeds will be applied to satisfy such commitment or letter of intent within 180 days of the extent that expiration of the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than Proceeds Application Period (an “Acceptable Commitment”) and such Applicable Proceeds are actually applied in such manner within 180 days of the Remaining Excess Proceeds, expiration of the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.Proceeds
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale unless unless: (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such the Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of of; and (ii) at least 8075% of the consideration therefor received in the Asset Sale by the Company or such Restricted SubsidiarySubsidiary is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash or Cash Equivalents: (a) any liabilities, as shown on the case may beCompany's or such Restricted Subsidiary's most recent balance sheet, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that (Aare by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the amount transferee of any Senior Debt of such assets and the lender releases the Company or such Restricted Subsidiary that is assumed from further liability; and (b) any securities, notes or other obligations received by the transferee in Company or any such transaction and (B) any consideration received Restricted Subsidiary from such transferee that are promptly converted by the Company or such Restricted SubsidiarySubsidiary into cash or Cash Equivalents, as to the case may be, that consists of (1) all or substantially all extent of the assets of one cash or more Similar Businesses, (2) other long-term assets Cash Equivalents received in that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provisionconversion. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess such Net Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by at its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.option:
Appears in 1 contract
Samples: Airgas East Inc
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) , receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors of the Company set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests Properties issued or sold or otherwise disposed of and (ii) at least 8085% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (x) any Senior Debt liabilities (as shown on the Company's or such Subsidiary's most recent balance sheet) of the Company or such Restricted any Subsidiary (other than contingent liabilities and liabilities that is are Subordinated Indebtedness or otherwise by their terms subordinated to the Securities or the Subsidiary Guarantees) that are assumed by the transferee in of any such transaction assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability and (By) any consideration notes or other obligations received by the Company or any such Restricted Subsidiary, as Subsidiary from such transferee that are converted by the case may be, that consists Company or such Subsidiary into cash within 180 days of closing such Asset Sale (1) all or substantially all to the extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 180 days after the receipt of any Net Cash Proceeds from an any Asset Sale, the Company may apply such Net Proceeds, at its option, (i) apply all or any of the Net Cash Proceeds therefrom to repay Indebtedness under a Credit Facility(other than Subordinated Indebtedness) of the Company or any Subsidiary, provided, in each case, that the related loan commitment of any revolving credit facility or other borrowing (if any) is thereby permanently reduced by the amount of such Indebtedness so repaid, or (ii) to the acquisition of Permitted Securities, invest all or substantially all any part of the Net Cash Proceeds thereof in properties and other capital assets that replace the properties or other capital assets that were the subject of one such Asset Sale or more Similar Businesses, in other properties or other capital assets that will be used in the making of a capital expenditure or the acquisition of other long-term assets in a Similar Ice Business. Pending the final application of any such Net Cash Proceeds, the Company may temporarily reduce Indebtedness borrowings under a Credit Facility any revolving credit facility or otherwise invest such Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any Net Cash Proceeds from an Asset Sales Sale that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". Available Proceeds Amount." When the aggregate amount of Excess Available Proceeds Amount exceeds $10.0 million2,500,000, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes the Securities and any other then outstanding Pari Passu Indebtedness that ranks pari passu required to be repurchased or repaid on a permanent basis in connection with the Notes thatan Asset Sale, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Securities and any such Pari Passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess equal to such Available Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.Amount as follows:
Appears in 1 contract
Samples: Packaged Ice Inc
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustees) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, provided that (A) the amount of (x) any Senior Debt 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 subordinate to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability or, in the case of the sale of Capital Stock, that is are assumed by the transferee in any such transaction by operation of law and (By) any consideration securities, notes or other obligations received by the Company or such Restricted Subsidiary, as Subsidiary from such transferee that are promptly (subject to ordinary settlement periods) converted by the case may be, that consists of Company or such Restricted Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the applicable Restricted Subsidiary may apply such Net Proceeds, at its option, Proceeds (ia) to repay or repurchase Indebtedness under of a Credit FacilityRestricted Subsidiary of the Company (and to correspondingly reduce commitments with respect thereto in the case of revolving credit borrowings), or (iib) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businessesof, or a majority of the Voting Stock of, another Person (or business unit or division of such Person); provided, that the primary business of such Person (or unit or division) is a Permitted Business, (c) to fund obligations of the Company or any Restricted Subsidiary under the Partnership Parks Agreements or the Subordinated Indemnity Agreement, (d) to the acquisition of Capital Stock of a Restricted Subsidiary of the Company held by Persons other than the Company or any Restricted Subsidiary, (e) to the making of a capital expenditure or (f) to the acquisition of other long-term assets that are used or useful in a Similar Permitted Business. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a Credit Facility revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any all holders of other Indebtedness that ranks pari passu Indebtedness of the Company containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds proceeds of sales of assets (a an "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and such other pari passu Indebtedness of the Company that may be purchased out of such Remaining the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchaserepurchase, in accordance with the procedures set forth in this IndentureIndenture and such other Indebtedness. To the extent that the aggregate amount any Excess Proceeds remain after consummation of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess ProceedsOffer, the Company may use any Remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes or pari passu and such other Indebtedness surrendered by Holders thereof tendered into such Asset Sale Offer exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes and such other Indebtedness to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Escrow and Disbursement Agreement (Premier Parks Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (x) any Senior Debt 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 pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed from further liability and (y) any securities, notes or other obligations received by the transferee in Company or any such transaction and Restricted Subsidiary from such transferee that are contemporaneously (Bsubject to ordinary settlement periods) any consideration received converted by the Company or such Restricted Subsidiary, as Subsidiary into cash or Cash Equivalents (to the case may be, that consists of (1) all or substantially all extent of the assets of one cash or more Similar BusinessesCash Equivalents received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash or Cash Equivalents for purposes of this provision. Within 365 days after On or prior to the 365th day following the receipt of any Net Proceeds from an Asset Sale, the Company (or such Restricted Subsidiary, as the case may apply such Net Proceedsbe) may, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) subject to the acquisition provisions The Company or any of its Restricted Subsidiaries may engage in transactions in which assets are transferred in exchange for one or more assets that are of a type customarily used in a Permitted Securities, all or substantially all Business; provided that if the fair market value of the assets of one to be transferred by the Company or more Similar Businessessuch Restricted Subsidiary, or plus the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application fair market value of any such Net Proceeds, other consideration paid or credited by the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner Restricted Subsidiary exceeds $1.0 million, such transaction shall require approval of the Board of Directors of the Company; provided that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph no such transaction shall be deemed to constitute "Excess Proceeds". When permitted if the aggregate amount Consolidated Coverage Ratio of Excess Proceeds exceeds $10.0 million, the Company would be reduced after giving effect to such transaction; and provided, further, that the transferee of such assets shall make an offer to all holders initially be designated as a Restricted Subsidiary if such Person becomes a Subsidiary by virtue of 1997 Notes (an "such Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes that may Sale. In addition, each such transaction shall be purchased out of the Excess Proceeds, valued at an offer price in cash in an amount equal to 100% all consideration received by the Company or such Restricted Subsidiary in such transaction, other than such assets received pursuant to such exchange ("Other Consideration"), for purposes of determining whether an Asset Sale has occurred. If the principal Other Consideration is of an amount thereof plus accrued and unpaid interest character such that such transaction constitutes an Asset Sale, then the first two paragraphs of this Section 4.10 shall be applicable to any proceeds of such Other Consideration. 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 date extent such laws and regulations are applicable to the repurchase of purchase, in accordance with the procedures set forth in the 1997 IndentureNotes pursuant to an Asset Sale Offer. To the extent that the aggregate amount provisions of 1997 Notes tendered pursuant to an any securities laws or regulations conflict with the Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum provisions of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.the
Appears in 1 contract
Samples: Uk Abba Products Inc
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the 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 (evidenced by an Officers' Certificate delivered to which, in the Trustee which will include case of any Asset Sale involving shares or assets having a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 2.0 million, shall be determined in good faith by the Company's Board of Directors) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (x) any Senior Debt of the Company or such Restricted any Subsidiary of the Company that is assumed by the transferee in of any such transaction assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability thereon and (By) any consideration securities, notes or other obligations received by the Company or any such Restricted Subsidiary, as Subsidiary from such transferee that are immediately converted by the case may be, that consists of Company or such Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision; and provided, further, that any Asset Sale pursuant to a condemnation, appropriation or other similar taking, including by deed in lieu of condemnation, or pursuant to the foreclosure or other enforcement of a Permitted Lien or exercise by the related lienholder of rights with respect thereto, including by deed or assignment in lieu of foreclosure shall not be required to satisfy the conditions set forth in clauses (i) and (ii) of this paragraph. Within 365 270 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (ia) to repay Indebtedness under a any Credit FacilityFacility (and to correspondingly permanently reduce the commitments with respect thereto; provided that the Company shall not be required to effect such permanent reductions from August 11, 1997 in excess of an aggregate of $25.0 million) or (iib) to acquire or make a controlling Investment in or with respect to a Permitted Business or the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businessesa Permitted Business, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a any Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenturehereby. Any Net Proceeds from an Asset Sales Sale that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds"" from an Asset Sale. When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall be required to make an offer to all holders Holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indentureherein. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Indenture (B&g Foods Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale (excluding for this purpose an Event of Loss) unless (ia) the Company (or the 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 (evidenced by as determined in accordance with the definition of such term, the results of which determination shall be set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets properties, assets, rights or Equity Interests issued or sold or otherwise disposed of and (iib) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, that (A) the amount of (i) any Senior Debt liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that is are by their terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee in of any such transaction assets, properties, rights or Equity Interests pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability and (Bii) any consideration securities, notes or other obligations received by the Company or such Restricted Subsidiary, as Subsidiary from such transferee that are converted within 30 days by the case may be, that consists of Company or such Restricted Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businesses, (2cash received in that conversion) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provisionSection 4.10. Within 365 days after the receipt of any Net Proceeds from an Asset SaleSale (including, without limitation, any Event of Loss), the Company or any such Restricted Subsidiary may apply such Net Proceeds, at its option, Proceeds to (ia) to permanently repay all or any portion of the principal of any secured Indebtedness under a Credit Facility, or (ii) to the acquisition extent of Permitted Securities, all or substantially all the fair value of the assets collateralizing such Indebtedness, as determined by the Board of one Directors) or more Similar Businesses(b) acquire (including by way of a purchase of assets or stock, merger, consolidation or otherwise) Productive Assets, provided that if the Company or such Restricted Subsidiary enters into a binding agreement to acquire such Productive Assets within such 365 day period, but the consummation of the transactions under such agreement has not occurred within such 365 day period, and the agreement has not been terminated, then the 365 day period will be extended to 18 months to permit such consummation; provided further, however, if such consummation does not occur, or such agreement is terminated within such 18 month period, then the making Company may apply, or cause such Restricted Subsidiary to apply, within 90 days after the end of a capital expenditure the 18 month period or the acquisition effective date of other long-term assets such termination, whichever is earlier, such Net Proceeds as provided in a Similar Businessclauses (a) and (b) of this paragraph. Pending the final application of any such Net Proceeds, the Company or any such Restricted Subsidiary may temporarily reduce Indebtedness outstanding revolving credit borrowings, including borrowings under a the Credit Facility Facility, or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence clauses (a) and (b) of this paragraph shall be deemed to constitute "Excess Proceeds". When ." Within 30 days of each date on which the aggregate amount of Excess Proceeds exceeds $10.0 million10,000,000, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to commence an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.Section 3.09 hereof to
Appears in 1 contract
Samples: Hornbeck Offshore Services Inc /De/
Asset Sales. The Company Issuers shall not, and shall not permit any of its their Restricted Subsidiaries to, consummate an Asset Sale Sale, unless (ix) the Company Issuers (or the Restricted Subsidiary, as the case may be) receives receive consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of; (y) such fair market value is determined by the Issuers' Boards of Directors and evidenced by a resolution of the Boards of Directors set forth in an Officers' Certificate delivered to the Trustee; and (y) at least 75% of the consideration received therefor by the Issuers or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided, however, that each of the following shall be deemed to be cash for purposes of this provision: (A) any Indebtedness or other liabilities, as shown on the Issuers' or such Restricted Subsidiary's most recent balance sheet, of the Issuers or any Restricted Subsidiary (other than contingent liabilities and Indebtedness that is by its terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to an agreement that releases the Issuers or such Restricted Subsidiary from further liability; and (B) any securities, Notes or other obligations received by the Issuers or any such Restricted Subsidiary from such transferee that are converted within 45 days of the applicable Asset Sale by the Issuers or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion. Notwithstanding the foregoing, the Issuers and their Restricted Subsidiaries may engage in Asset Swaps; provided that, (i) immediately after giving effect to such Asset Swap, the Issuers would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Debt to Cash Flow Ratio test set forth in the first paragraph of Section 4.09 hereof; and (ii) at least 80% the Issuers' or the Restricted Subsidiary's Board of Directors, as the consideration therefor received by case may be, determines that such Asset Swap is fair to the Company Issuers or such Restricted Subsidiary, as the case may be, consists from a financial point of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) view and such determination is evidenced by a resolution of such Board of Directors set forth in an Officers' Certificate delivered to the amount of any Senior Debt of the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provisionTrustee. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company Issuers may apply such those Net Proceeds, Proceeds at its their option, : (ia) to repay a permanent repayment or reduction of Indebtedness under (other than subordinated Indebtedness) of the Issuers or a Credit FacilityRestricted Subsidiary and, or if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; (iib) to the acquisition of Permitted Securities, acquire all or substantially all of the assets of one or more Similar Businesses, or the making a Permitted Business; (c) to acquire Voting Stock of a Permitted Business from a Person that is not a Subsidiary of the Issuers; provided, that (1) after giving effect thereto, the Issuers and their Restricted Subsidiaries collectively own a majority of such Voting Stock and (2) such acquisition is otherwise made in accordance with this Indenture, including, without limitation Section 4.07 hereof; (d) to make capital expenditure expenditures; or the acquisition of (e) to acquire other long-term tangible assets that are used or useful in a Similar Permitted Business. Pending the final application of any such Net Proceeds, the Company Issuers may temporarily reduce Indebtedness under a Credit Facility revolving credit borrowings or otherwise invest such the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this the immediately preceding paragraph shall will be deemed to constitute "Excess Proceeds". When ." Within five days of each date on which the aggregate amount of Excess Proceeds exceeds $10.0 20.0 million, the Company shall Issuers will make an offer Asset Sale Offer to all Holders of Notes and all holders of 1997 other Indebtedness that is pari passu with the Notes (an "Asset Sale Offer") containing provisions similar to those set forth in this Indenture relating to the Notes with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of 1997 Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereonLiquidated Damages, if any, to the date of purchase, and will be payable in accordance with the procedures set forth in this Indenturecash. To the extent that the aggregate amount If any Excess Proceeds remain after consummation of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess ProceedsOffer, the Company Issuers may use any Remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes or and such other pari passu Indebtedness surrendered by Holders thereof tendered into such Asset Sale Offer exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisbasis based on the principal amount of notes and such other pari passu Indebtedness tendered. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds shall will be reset at zero. The Issuers shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of the indenture, the Issuers shall comply with the applicable securities laws and regulations and shall not be deemed to have breached their obligations under the Asset Sale provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Samples: Insight Communications Co Inc
Asset Sales. The Company Parent shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (Parent or the 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 (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) Holders of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company Parent or such Restricted Subsidiary is in the form of cash or Cash Equivalents, provided that the amount of (a) any liabilities (as shown on the Parent's or such Restricted Subsidiary, as the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A's most recent balance sheet) the amount of any Senior Debt of the Company Parent or such Restricted Subsidiary (other than contingent liabilities and liabilities that is are by their terms subordinated to the Subordinated Term Loan D Notes or any Guaranty) that are assumed by the transferee in of any such transaction assets pursuant to a customary novation agreement that releases the Parent or such Restricted Subsidiary from farther liability and (Bb) any consideration securities, notes or other obligations received by the Company Parent or such Restricted Subsidiary, as Subsidiary from such transferee that are immediately converted by the case may be, that consists of Parent or such Restricted Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businesses, (2cash received) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days In the event of any Asset Sale, but only after all Senior Obligations have been paid in full in cash and the receipt Total Revolving Credit Commitment has been terminated, the principal (together with interest on such principal) of the Subordinated Term Loan D Notes shall become due and payable to the extent of any Net Proceeds from an any Asset Sale, the Company may apply such Net Proceeds, at its option, (iSale available for application to Subordinated Obligations pursuant to Section 2.05(d) to repay Indebtedness under a Credit Facility, or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence Article II of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zeroAgreement.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include in the event of an Asset Sale (whether pursuant to a resolution single transaction or a series of the Board of Directors with respect to such related transactions) that has fair market value in the event such Asset Sale or involves aggregate consideration Net Proceeds in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, provided that (A) the amount of (x) any Senior Debt 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 pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction from further liability and (By) any consideration securities, notes or other obligations received by the Company or any such Restricted Subsidiary, as Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the case may be, that consists of Company or such Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 180 days after the receipt of any Net Proceeds from an Asset SaleSale (360 days in the case of Net Proceeds that are comprised solely of Buy Out Proceeds), the Company may apply such Net Proceeds, at its option, Proceeds (ia) to repay Indebtedness under a the New Credit Facility, or (iib) to the acquisition of Permitted Securities, acquire all or substantially all of the assets of one or more Similar Businessesof, or a majority of the making of a Voting Stock of, another Permitted Business, (c) to make capital expenditure or the acquisition of expenditures, (d) to acquire other long-term assets that are used or useful in a Similar Permitted Business, including Media Representation Contracts, or (e) to pay Buy Out Proceeds Amounts in connection with Contract Buy Outs. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of 1997 other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes and such other pari passu Indebtedness 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this IndentureSection 3.09 hereof, and such other pari passu Indebtedness. To the extent that the aggregate amount any Excess Proceeds remain after consummation of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess ProceedsOffer, the Company may use any Remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes or and such other pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Interep National Radio Sales Inc
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (Company, or the Restricted Subsidiary, as the case may be) , receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced as determined in good faith by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in of the event such Asset Sale involves aggregate consideration in excess of $5.0 millionCompany) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor is received by the Company or such Restricted Subsidiary, as Subsidiary at or prior to consummation of the case may be, consists Asset Sale and is in the form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (x) any Senior Debt 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 liabilities that are by their terms subordinated to the Notes or, in the case of liabilities of a Restricted Subsidiary, the Guarantee of such Subsidiary) that are assumed by the transferee of any such assets and (y) any securities, notes, promises to pay 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 that is assumed by into cash (to the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received) within 180 days after receipt, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash consideration received (for purposes of this provisionclause (i) above) and cash received at or prior to the consummation of the Asset Sale (for purposes of clause (ii) above). Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (ia) to repay Senior Debt or Pari Passu Indebtedness under a Credit Facility(provided that if the Company shall so reduce in excess of $15.0 million of Pari Passu Indebtedness, or it will equally and ratably make an Asset Sale Offer (iiin accordance with the procedures set forth below for an Asset Sale Offer) to all Holders) and/or (b) to an investment in a Related Business (or enter into a definitive agreement committing to so invest; provided that the acquisition of Permitted Securities, all transactions contemplated by any such agreement are later consummated) or substantially all of the assets of one or more Similar Businesses, or to the making of a capital expenditure or the acquisition of other long-term assets tangible assets, product distribution rights or intellectual property or rights thereto, in each case, in a Similar BusinessRelated Business (as determined in good faith by the Board of Directors of the Company). Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness borrowings under a the Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 15.0 million, the Company shall (i) make an offer to all holders Holders of 1997 Notes and (ii) prepay, purchase or redeem (or make an offer to do so) any other Pari Passu Indebtedness of the Company in accordance with provisions requiring the Company to prepay, purchase or redeem such Indebtedness with the proceeds from any asset sales (or offer to do so), pro rata in proportion to the respective principal amounts (or accreted value, as applicable) of the Notes and such other Indebtedness required to be prepaid, purchased or redeemed or tendered for pursuant to such offer (an "Asset Sale Offer") ), to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this IndentureSection 3.09. To the extent that the aggregate principal amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining remaining Excess Proceeds for any general corporate purposes. If purpose not in contravention of the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds other covenants provided for in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basisthis Indenture. Upon completion of such offer to purchasean Asset Sale Offer, the amount of Excess Proceeds shall be reset at to zero. The Asset Sale Offer shall be made by the Company in compliance with all applicable laws, including, without limitation, Rule 14e-1 under the Exchange Act and the rules thereunder, to the extent applicable.
Appears in 1 contract
Samples: Conmed Corp
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors and, with respect to such fair market value in the event such any Asset Sale involves aggregate involving consideration in excess of $5.0 million, a resolution of the Company's Board of Directors) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8085% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, PROVIDED that (A) the amount of (x) any Senior Debt 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 expressly assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction from further liability and (By) any consideration currencies, 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 Equivalents within 30 days after receipt (to the extent of the cash received), shall be deemed to be Cash Equivalents for purposes of this provision. The Company or the Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 within 180 days after the receipt of any Net Proceeds from an Asset SaleSale subject to this Section, the Company may apply such Net ProceedsProceeds (a) to permanently reduce Senior Indebtedness (other than the Notes or obligations of a Special Purpose Entity) of the Company or of any Restricted Subsidiary, at its option, or (b) to (i) to repay Indebtedness under a Credit Facilityan Investment (other than in Receivables that, at the time of purchase, are not Eligible Receivables), or (ii) to the purchase of Receivables that are, at the time of purchase, Eligible Receivables (including payment of Dealer Participations), or (iii) the making of any capital expenditure, or (iv) the acquisition of any other tangible assets, in each case, in or with respect to a Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness the principal obligations outstanding under a Credit any Warehouse Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first preceding sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall be required to make an offer to all holders Holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest thereon to the date of purchase, in accordance with this Section 510. Notwithstanding the procedures set forth foregoing, if any Excess Spread or interest therein is sold or otherwise conveyed or disposed of in an Asset Sale subject to this Section 510 and, immediately thereafter, Finance Income Receivable relating to the remaining aggregate Excess Spread not sold, conveyed or disposed of pursuant to such transaction (the "Remaining Finance Income Receivable") would be less than Minimum Finance Income Receivable, the Company shall be required to make an Asset Sale Offer in the 1997 Indentureamount by which the Remaining Finance Income Receivable is less than Minimum Finance Income Receivable (the "FIR Offer Amount"), without regard to the application of the Net Proceeds of such sale by the Company pursuant to clause (a) or (b) above; PROVIDED, that any Asset Sale Offer made pursuant to this sentence shall be at an offer price of 101% of the principal amount of the Notes plus accrued and unpaid interest thereon to the date of the purchase. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds or FIR Offer Amount, the Company or the Restricted Subsidiary, as the case may be, may use any remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale FIR Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds Amount for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offeror FIR Offer Amount, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The FIR Offer Amount shall be determined separately for each Asset Sale of Excess Spread. The Asset Sale Offer shall remain open for the minimum period of time required by Rule 14e-1 and no longer (the "Asset Sale Offer Period"). No later than five Business Days after the termination of the Asset Sale Offer Period (the "Asset Sale Purchase Date"), the Company shall purchase the principal amount of Notes required to be purchased pursuant to this Section 510 (the "Asset Sale Offer Amount") or, if less than the Asset Sale Offer Amount has been tendered, all Notes tendered in response to the Asset Sale Offer. If the Asset Sale Purchase Date is on or after an interest payment record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. On or before the Asset Sale Purchase Date, the Company shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Sale Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount has been tendered, all Notes tendered, and deliver to the Trustee an Officers' Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 510. The Company, the Depositary or the Paying Agent, as the case may be, shall, not later than five days after the Asset Sale Purchase Date, mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall issue a new Note, and the Trustee, upon delivery of an Officers' Certificate from the Company, shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of any Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Asset Sale Purchase Date. The Company shall comply, to the extent applicable, with the requirements of Rule 14e-1 and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 510. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 510, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 510 by virtue thereof. Notwithstanding the foregoing, this Section 510 shall be of no further force or effect and shall cease to apply upon and after the occurrence of an Investment Grade Rating Event.
Appears in 1 contract
Samples: Indenture (Olympic Financial LTD)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an to conduct any Asset Sale unless (ix) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (for Asset Sales having a fair market value or Net Proceeds in excess of $5.0 million as evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (iiy) at least 8075% of the consideration received therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, that the amount of (A) any liabilities (as shown on the amount of any Senior Debt Company's or such Subsidiary's most recent balance sheet or in the notes thereto) of the Company or such Restricted any Subsidiary (other than liabilities that is are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee in of any such transaction and assets, (B) any consideration notes or other obligations received by the Company or any such Restricted Subsidiary, as Subsidiary from such transferee that are immediately converted by the case may be, that consists of Company or such Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businessescash received), (2C) other longany assets received in exchange for assets pursuant to a like-term assets that are used or useful in one or more Similar Businesses kind exchange and (3D) Permitted Securities any $25.0 million of Designated Noncash Consideration (which shall not at any time exceed, in the aggregate, $25.0 million outstanding), in each case, shall be deemed to be cash for purposes of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or such Subsidiary) may apply the Net Proceeds from such Net ProceedsAsset Sale, at its option, either (ia) to repay Indebtedness under a Credit Facilityan investment in another business, or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure expenditures or the acquisition of other long-term assets assets, in each case, in the same or similar line of business as the Company was engaged in on the date of this Indenture, or (b) to permanently reduce long-term Indebtedness of the Company or a Similar BusinessSubsidiary of the Company or to permanently reduce borrowings and commitments under Indebtedness permitted to be incurred pursuant to clause (i) of the second paragraph of Section 4.09 hereof. Pending the final application of any such Net Proceeds, the Company (or such Subsidiary) may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from such Asset Sales Sale that are not finally applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". When ." Within five days of each date on which the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall make an offer to all holders of 1997 Notes (an "commence a pro rata Asset Sale Offer") Offer pursuant to Section 3.09 hereof to purchase the maximum principal amount of 1997 Notes that may be purchased out of the Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date fixed for the closing of purchase, such offer in accordance with the procedures set forth in the 1997 IndentureSection 3.09 hereof. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company (or such Subsidiary) may use any Remaining Excess Proceeds such deficiency for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall will be deemed to be reset at zero.
Appears in 1 contract
Samples: Indenture (Key Energy Group Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale in excess of $1,000,000 unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to Directors, except for sales of Securitization Related Assets, which require no such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionresolution) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (x) any Senior Debt liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, excluding contingent liabilities and trade payables), of the Company or any such Restricted Subsidiary that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed from further liability and (y) any securities, notes or other obligations received by the transferee in Company or any such transaction and (B) any consideration received 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, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary may apply such Net Proceeds, at its option, (ia) to repay permanently reduce Senior Indebtedness under a Credit Facility(other than the Notes or the Subsidiary Guarantees) of the Company or of the Subsidiary Guarantors, or (iib) to the acquisition an Investment (excluding Guarantees of Permitted SecuritiesIndebtedness or other obligations), all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets tangible assets, in each case in or with respect to a Similar Related Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 million5,000,000, the Company shall be required to make an offer to all holders Holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereonLiquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. An Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the "Asset Sale Offer Period"). No later than five Business Days after the termination of the Asset Sale Offer Period (the "Asset Sale Purchase Date"), the Company shall purchase the principal amount of Notes required to be purchased pursuant to this covenant (the "Asset Sale Offer Amount") or, if less than the Asset Sale Offer Amount has been tendered, all Notes tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Asset Sale Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. On or before the Asset Sale Purchase Date, the Company shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Sale Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount has been tendered, all Notes tendered, and shall deliver to the Trustee an Officers' Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this covenant. The Company, the Depository or the Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Asset Sale Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Asset Sale Purchase Date.
Appears in 1 contract
Samples: Imperial Credit Industries Inc
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such case of any Asset Sale involves aggregate for which the Company or any of its Restricted Subsidiaries receives consideration in excess of $5.0 million15,000,000) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (x) any Senior Debt 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 pursuant to a customary novation or other agreement that releases the Company or such Restricted Subsidiary that is assumed from further liability and (y) any securities, notes or other obligations received by the transferee in Company or any such transaction and (B) any consideration received Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary, as Subsidiary within 90 days following the case may be, that consists of (1) all or substantially all closing of the assets Asset Sale into cash (to the extent of one or more Similar Businessesthe cash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 360 days after of the receipt of any Net Proceeds from an Asset Sale, the Company and its Restricted Subsidiaries may apply such Net Proceeds, at its their option, (ia) to repay secured Indebtedness (and, in the case of any such Indebtedness that was borrowed under a Credit Facilityrevolving credit line, to correspondingly reduce commitments with respect thereto), or (iib) to the acquisition of Permitted Securitiesa controlling interest in another business, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital 54 49 expenditure or the acquisition of other long-term assets assets, in each case, in the same or a Similar Businessrelated or complementary line of business as the Company or any of its Restricted Subsidiaries was engaged in on the date of this Indenture (as determined in good faith by the Company). Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness the revolving credit lines under a the New Credit Facility (without any corresponding commitment reduction) or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." Not later than 30 days after any date (an ". When Asset Sale Offer Trigger Date") that the aggregate amount of Excess Proceeds exceeds $10.0 million10,000,000, the Company shall make mail to each holder of Notes at such holder's registered address a notice stating: (i) that an offer to all holders of 1997 Notes (an "Asset Sale Offer") Offer Trigger Date has occurred and that the Company is offering to purchase the maximum principal amount of 1997 Notes 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 thereof, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchasepurchase (the "Asset Sale Offer Purchase Date"), which shall be a business day, specified in accordance 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 and unpaid interest and Liquidated Damages, if any, thereon as of the Asset Sale Offer Purchase Date; (iii) that any Note not tendered shall continue to accrue interest and Liquidated Damages, if any; (iv) that, unless the Company defaults in the payment of the purchase price for the Notes payable pursuant to the Asset Sale Offer, any Notes accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest and Liquidated Damages, if any, after the Asset Sale Offer Purchase Date; (v) the procedures, consistent with this Indenture, to be followed by a holder of Notes in order to accept an Asset Sale Offer or to withdraw such acceptance; and (vi) such other information as may be required by this Indenture and applicable laws and regulations. On the Asset Sale Offer Purchase Date, the Company shall: (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 procedures set forth paying agent the aggregate purchase price of all Notes or portions thereof accepted for payment and any accrued and unpaid interest and Liquidated Damages, if any, on such 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. 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 Note plus any accrued and unpaid interest and Liquidated Damages, if any, 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 shall be promptly returned to the holder of such Note. On and after an Asset Sale 55 50 Offer Purchase Date, interest and Liquidated Damages, if any, shall cease to accrue on the Notes or portions thereof accepted for payment, unless the Company defaults in the 1997 Indenturepayment of the purchase price therefor. The Company shall announce the results of the Asset Sale Offer to holders of the Notes on or as soon as practicable after the Asset Sale Offer Purchase Date. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate Aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The Company shall comply with the applicable tender offer rules, including the requirements of Rule 14e-1 under the Exchange Act, and all other applicable securities laws and regulations in connection with any Asset Sale Offer. To the extent that any applicable securities laws or regulations conflict with the terms hereof, the Company shall comply with such laws or regulations and shall not be deemed to have breached its obligations under this Indenture or Notes by virtue thereof. If the Asset Sale Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
Appears in 1 contract
Samples: Indenture (Medaphis Corp)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale unless (ix) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (iiy) at least 8075% of the consideration received therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, that the amount of (A) any liabilities (as shown on the amount 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 Senior Debt of such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction from further liability and (B) any consideration securities, notes or other obligations received by the Company or any such Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provisionSection 4.10. A transfer of assets by the Company to a Wholly Owned Subsidiary or by a Wholly Owned Subsidiary to the Company or to another Wholly Owned Subsidiary, and an issuance of Equity Interests by a Wholly Owned Subsidiary to the Company or to another Wholly Owned Subsidiary, shall not be deemed to be an Asset Sale. Any Restricted Payment that is permitted by Section 4.07 hereof will not be deemed to be an Asset Sale. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply the Net Proceeds from such Net ProceedsAsset Sale, at its option, (ia) to repay permanently reduce the Senior Debt (or, if such Senior Debt is revolving Indebtedness under a Credit Facility, to permanently reduce any related commitments of lenders under the Senior Debt (provided that such reduction shall have no effect on the amount of Indebtedness permitted to be incurred pursuant to Section 4.09(ii)(b))), or (iib) to the acquisition of Permitted Securities, all or substantially all a majority of the assets of one or more Similar Businessesof, or a majority of the Voting Stock of, another Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets that are not classified as current assets under GAAP and are used or useful in a Similar Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from such Asset Sales Sale that are not finally applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". When ." Within five days of each date on which the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make commence an offer Asset Sale Offer (pro rata in proportion to the principal amount (or accreted value, if applicable) outstanding in respect of any Asset Sale Offer required by the terms of any pari passu Indebtedness incurred in accordance with this Indenture) to all holders Holders of 1997 Notes (an "Asset Sale Offer") pursuant to Section 3.09 hereof to purchase the maximum principal amount of 1997 Notes that may be purchased out of the Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date fixed for the closing of purchase, such offer in accordance with the procedures set forth in the 1997 IndentureSection 3.09 hereof. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and may use such deficiency for any other Indebtedness that ranks pari passu with the Notes that, purpose not otherwise prohibited by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than (and any pari passu Indebtedness, as aforesaid) exceeds the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall will be deemed to be reset at zero.
Appears in 1 contract
Samples: Indenture (Oshkosh Truck Corp)
Asset Sales. The Company Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company Issuer (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such any Asset Sale involves aggregate consideration involving in excess of $5.0 1.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company Issuer or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (x) any liabilities (as shown on the Issuer's or such Restricted Subsidiary's most recent balance sheet), as of the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, Issuer or any Restricted Subsidiary (other than contingent liabilities and liabilities that (Aare by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the amount transferee of any Senior Debt of such assets pursuant to a customary novation agreement that releases the Company Issuer or such Restricted Subsidiary that is assumed by the transferee in any such transaction from further liability and (By) any consideration securities, notes or other obligations received by the Company Issuer or any such Restricted Subsidiary from such transferee that are immediately converted by the Issuer or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company Issuer or its Restricted Subsidiary, as the case may be, may apply such Net ProceedsProceeds from such Asset Sale to permanently reduce Indebtedness under the New Credit Facility in accordance with its terms, if applicable, or to the extent not required to be applied thereunder, may, at its option, (i) apply such Net Proceeds to repay repayment of Indebtedness under a Credit Facility, or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a Restricted Subsidiary (in the case of Net Proceeds from an Asset Sale effected by a Restricted Subsidiary) or to an investment in a Restricted Subsidiary or in another business or capital expenditure or the acquisition of other long-term assets term/tangible assets, in each case, in the same or a Similar Businesssimilar line of business as the Issuer or any of its Restricted Subsidiaries were engaged in on the date of this Indenture or in businesses reasonably related thereto. Pending the final application of any such Net Proceeds, the Company Issuer may temporarily reduce Indebtedness under a the New Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company Issuer shall be required to make an offer to all holders Holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereonLiquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess Proceeds, the Company Issuer may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Indenture (Anchor Holdings Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an any Asset Sale Sale, unless (i) the Company (or the 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 (evidenced as determined in good faith by the Board of Directors (including as to the value of all noncash consideration) and set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor is in the form of cash and/or Cash Equivalents or Telecommunications Assets, and (iii) the Net Cash Proceeds received by the Company (or such Restricted Subsidiary, as the case may be) from such Asset Sale are applied within 360 days following the receipt of such Net Cash Proceeds, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) to the amount of any Senior Debt of extent the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be) elects, (a) to the permanent redemption or repurchase of outstanding Indebtedness (other than Subordinated Indebtedness) that consists is secured Indebtedness (including that in the case of (1a revolver or similar arrangement that makes credit available, such commitment is so permanently reduced by such amount) all or substantially all Indebtedness of the assets Company or such Restricted Subsidiary that ranks equally with the Notes but has a maturity date that is prior to the maturity date of one the Notes and/or (b) to reinvest such Net Cash Proceeds (or more Similar Businessesany portion thereof) in Telecommunications Assets. Notwithstanding anything herein to the contrary, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed with respect to be cash for purposes the reinvestment of this provision. Within 365 days after the receipt of any Net Proceeds Cash Proceeds, only proceeds from an Asset SaleSale of assets, the Company or Equity Interests, of a Foreign Subsidiary may apply be used to retire Indebtedness of a Foreign Subsidiary or reinvest in assets or Equity Interests of a Foreign Subsidiary. The balance of such Net Cash Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to after the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided described in the first sentence of this paragraph immediately preceding clauses (a) and (b), shall be deemed to constitute "Excess Proceeds". EXCESS PROCEEDS." When the aggregate amount of Excess Proceeds equals or exceeds $10.0 million15.0 million (taking into account income earned on such Excess Proceeds), the Company shall will be required to make an a pro rata offer to all holders Holders of 1997 Notes and pari passu Indebtedness with comparable provisions requiring such Indebtedness to be purchased with the proceeds of such Asset Sale (an "Asset Sale OfferASSET SALE OFFER") to purchase the maximum principal amount (or accreted value in the case of 1997 Indebtedness issued with an original issue discount) of Notes and pari passu Indebtedness that may be purchased out of the Excess Proceeds, at an offer a purchase price in cash in an amount equal to 100% of the principal amount thereof or the accreted value thereof, as applicable, plus accrued and unpaid interest thereon to the date of purchasepurchase (subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in Article 3 of this Indenture and the 1997 Indentureagreements governing such pari passu Indebtedness. To the extent that the aggregate amount any Excess Proceeds remain after consummation of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 millionOffer, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase may use such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase for any purpose not otherwise prohibited by this Indenture. If the maximum aggregate principal amount of Notes and pari passu Indebtedness that may be purchased out of tendered into such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes and pari passu Indebtedness to be purchased on a pro rata basisbasis in proportion to the respective principal amounts (or accreted values in the case of Indebtedness issued with an original issue discount) of the Notes and such other Indebtedness. Upon completion of such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds shall be reset at zerozero for purposes of the first sentence of this paragraph. The amount of (x) any liabilities (as shown on the Company's (or such Restricted Subsidiary's, as the case may be) most recent balance sheet), other than Subordinated Indebtedness of the Company or any Restricted Subsidiary that are assumed by the transferee of any such assets pursuant to an agreement that immediately releases the Company and all of its Restricted Subsidiaries from all liability in respect thereof, (y) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, if the Company and all of its Restricted Subsidiaries are immediately released from all Guarantees of payment of such Indebtedness and such Indebtedness is no longer the liability of the Company or any of its Restricted Subsidiaries, and (z) any securities, notes or other obligations received by the Company (or such Restricted Subsidiary, as the case may be) from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company (or such Restricted Subsidiary, as the case may be) into cash and/or Cash Equivalents (to the extent of the cash and/or Cash Equivalents received), will be deemed to be cash and/or Cash Equivalents for purposes of this provision. To the extent that the provisions of any securities laws or regulations shall conflict with the Asset Sale provisions of this Indenture, the Company shall comply with 69 the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue thereof.
Appears in 1 contract
Samples: Metromedia Fiber Network Inc
Asset Sales. The Company Partnership shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless: (ia) the Company Shreveport Resort is Operating; (b) the Partnership (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of; (c) such fair market value is determined by the Partnership's Board of Directors and evidenced by a resolution of the Board of Directors as set forth in an Officers' Certificate delivered to the Trustee; and (iid) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of any Senior Debt of the Company Partnership or such Restricted Subsidiary that is assumed by in the transferee in any such transaction form of cash. For purposes of this provision and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all not for purposes of the assets definition of one or more Similar Businesses"Net Proceeds" (except to the extent set forth in such definition with respect to the conversion of non-cash proceeds to cash), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities each of the following shall be deemed to be cash: (x) any liabilities (as shown on the Partnership's or such Restricted Subsidiary's most recent balance sheet) of the Partnership or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Restricted Subsidiary's Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Partnership or such Restricted Subsidiary from further liability; and (y) any securities, Notes or other obligations received by the Partnership or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Partnership or such Restricted Subsidiary into cash for purposes (to the extent of this provisionthe cash received in that conversion). Within 365 270 days after the receipt of any Net Proceeds from an Asset Sale, the Company Partnership or the Restricted Subsidiary may apply such Net ProceedsProceeds to make a capital expenditure, at its optionimprove real property or acquire longterm assets that are used or useful in a line of business permitted under Section 4.14 hereof; provided, (i) to repay Indebtedness under a Credit Facilityhowever, that the Partnership or (ii) the Restricted Subsidiary, as the case may be, grants to the acquisition of Permitted SecuritiesTrustee, all or substantially all on behalf of the assets Holders of one or more Similar Businessesthe Notes, or and, if the making of a capital expenditure or Asset Sale relates to Pari Passu Collateral, the acquisition of other long-term assets in a Similar Business. Pending the final application holders of any Indebtedness secured by the Pari Passu Collateral, a first priority perfected security interest, subject to Permitted Liens, on any such property or assets acquired or constructed with the Net ProceedsProceeds of any Asset Sale on the terms set forth herein, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited intercreditor agreement entered into by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest Partnership with respect to the date of purchase, Pari Passu Collateral in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") this Indenture and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.the
Appears in 1 contract
Samples: HCS Ii Inc
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the 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 (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8085% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, any combination of cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (a) any Senior Debt liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent liabilities and liabilities that is are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee in of any such transaction assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary from further liability and (Bb) any consideration securities, notes or other obligations received by the Company or such Restricted Subsidiary, as Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the case may be, that consists of Company or such Restricted Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. The Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with clause (ii) of the immediately proceeding paragraph if (i) 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 or other property sold, issued or otherwise disposed of and (ii) at least 85% of the consideration for such Asset Sale constitutes any combination of cash, Cash Equivalents and Productive Assets; provided that any cash consideration, any non-cash consideration not constituting Productive Assets received by the Company or any of its Restricted Subsidiaries in connection with such Asset Sale that is converted into or sold or otherwise disposed of for cash or Cash Equivalents at any time within 270 days after such Asset Sale and any Productive Assets constituting cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in connection with such Asset Sale shall constitute Net Cash Proceeds subject to the provisions set forth above. Within 365 270 days after the receipt of any Net Proceeds from an any Asset Sale, the Company may (or such Restricted Subsidiary) may, subject to the provisions of the covenant described in Section 4.07 hereof, apply such Net Proceeds, at its option, Proceeds to (i) permanently reduce the amounts permitted to repay Indebtedness be borrowed by the Company or such Restricted Subsidiary under a Credit Facility, the terms of any of its Debt that is not Subordinated Debt or (ii) to the acquisition purchase of Permitted Securities, all Telecommunications Related Assets or substantially all Voting Stock of any Person engaged in the Telecommunications Business in the U.S. (provided that such Person concurrently becomes a Restricted Subsidiary of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar BusinessCompany). Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this the Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall will be required to make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase repurchase the maximum principal amount of 1997 Notes 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 of the Notes to be purchased, plus accrued and unpaid interest thereon, if any, to the date of purchasepurchase (or, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an if such Asset Sale Offer is less than to be consummated prior to the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 millionFull Accretion Date, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof Accreted Value of the Notes, plus accrued and unpaid interest thereon, if any, to the date of purchase), in accordance with the procedures set forth in this the Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount remain after consummation of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary an Asset Sale Offer, the Company shall repurchase may use such Indebtedness on a pro rata basis and Excess Proceeds for any purpose not otherwise prohibited by the Indenture. If the aggregate Accreted Value or principal amount, as the case may be, of Notes tendered pursuant to such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. 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 to the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the 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 the Asset Sale provisions of this Indenture by virtue thereof.
Appears in 1 contract
Samples: Covad Communications Group Inc
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: (i1) the Company (or the such Restricted Subsidiary, as the case may be) , receives consideration at the time of such the Asset Sale at least equal to the fair market value Fair Market Value (evidenced by an Officers' Certificate delivered such Fair Market Value to be determined at the Trustee which will include a resolution time of the Board of Directors with respect contractually agreeing to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionSale) of the assets or Equity Capital Interests issued or sold or otherwise disposed of and of; (ii2) at least 8075% of the consideration therefor received in the Asset Sale by the Company or such Restricted Subsidiary, as the case may be, consists is in the form of cashcash or Eligible Cash Equivalents; and -99- Obligations, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of any Senior Debt of the Company or such Restricted Subsidiary that is assumed by shall be entitled to repay such obligations without an obligation to offer to repay obligations under the transferee Notes in any such transaction an equivalent amount and (By) any consideration received by except as provided in the foregoing clause (x), to the extent the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) Guarantor so reduces any other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 millionFirst Priority Obligations, the Company shall make an offer to all holders of 1997 Notes (purchase an "Asset Sale Offer") to purchase the maximum principal equal and ratable amount of 1997 the Notes that may be purchased out of the Excess Proceeds, at as provided under Article 3 by making an offer price in cash in an amount equal Offer to 100% of the principal amount thereof plus accrued and unpaid interest to the date of purchase, Purchase (in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds"Section 4.10(d)) and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of their Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof thereof, plus accrued and but unpaid interest thereonto, if anybut not including, the date of purchase (and, in the case of revolving loans, to correspondingly reduce commitments with respect thereto); (B) to prepay, repay, redeem or purchase outstanding Obligations under the Bridge Facilities; or (C) solely to the extent that such Net Cash Proceeds are not derived from an Asset Sale of Collateral, to reduce Obligations ranking pari passu in right of payment with the Notes (other than First Priority Obligations); provided, that to the extent the Company or the applicable Restricted Subsidiary so reduces any such pari passu Obligations, the Company shall equally and ratably offer to repay obligations under the Notes outstanding in the manner set forth in clause (A) above; (2) to acquire all or substantially all of the assets of, or any Capital Interests of, another Permitted Business, if, after giving effect to any such acquisition of Capital Interests, the Permitted Business is or becomes a Restricted Subsidiary of the Company; provided that, to the date extent such Net Cash Proceeds are derived from an Asset Sale of purchaseCollateral, such assets or Capital Interests, as applicable, shall be added to the Collateral securing the Notes to the extent required by this Indenture or any of the Collateral Documents; (3) to make a capital expenditure in or that is used or useful (as determined in the good faith judgment of the Company) in a Permitted Business or to make expenditures for maintenance, repair or improvement of existing properties and assets in accordance with the procedures set forth in provisions of this Indenture. To ; (4) to acquire other assets that are not classified as current assets under IFRS and that are used or useful (as determined in the good faith judgment of the Company) in a Permitted Business; provided that, to the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary such Net Cash Proceeds are derived from an Asset Sale Offer is less than of Collateral, such assets shall be added to the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select Collateral securing the Notes to be purchased on the extent required by this Indenture or any of the Collateral Documents; or (5) any combination of the foregoing, provided that, in the case of clause (3) of this Section 4.10(c), a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds binding commitment shall be reset at zero.treated as a permitted application of the Net Cash Proceeds from the date of
Appears in 1 contract
Samples: Pledge and Security Agreement (Concordia International Corp.)
Asset Sales. The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (Borrower or the 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 (evidenced as determined in good faith by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect of the Borrower or such Restricted Subsidiary and evidenced by an Officer’s Certificate to such fair market value in be promptly delivered to the event such Asset Sale involves aggregate consideration in excess of $5.0 millionAdministrative Agent) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received in the Asset Sale by the Borrower or such Restricted Subsidiary is in the form of cash or Cash Equivalents; provided that the amount of (a) any liabilities (as shown on the Borrower’s or such Restricted Subsidiary’s most recent balance sheet) of the Borrower or such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Loans or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Borrower or such Restricted Subsidiary from further liability, and (b) any securities, notes or other obligations received by the Company Borrower or such Restricted Subsidiary from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash (to the extent of the cash received) within 90 days following the closing of such Asset Sale, shall be considered cash for purposes of this clause (ii). Notwithstanding the immediately preceding paragraph, the Borrower and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such paragraph if (i) the Borrower or the applicable Restricted Subsidiary, as the case may be, consists receives consideration at the time of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) such Asset Sale at least equal to the amount of any Senior Debt of the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all fair market value of the assets or Equity Interests issued or sold or otherwise disposed of one (as determined in good faith by the Board of Directors of the Borrower or more Similar Businessesthe Restricted Subsidiary and set forth in an Officers’ Certificate delivered to the Administrative Agent) and (ii) at least 75% of the consideration for such Asset Sale constitutes a controlling interest in a Permitted Business, (2) other long-term assets that are not classified as current assets used or useful in one a Permitted Business and/or cash or more Similar Businesses and (3) Permitted Securities shall be deemed Cash Equivalents; provided that any cash or Cash Equivalents received by the Borrower or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be cash for purposes consummated under this paragraph shall constitute Net Proceeds subject to the provisions of this provisionthe next succeeding paragraph. Within 365 days after of the receipt of any Net Proceeds from an Asset Sale, the Company Borrower may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, prepay First Lien Loans in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") First Lien Credit Agreement and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, Loans in accordance with the procedures set forth in this Indenture. To terms of Section 2.11 including, without limitation, the extent that prepayment of the aggregate amount of Notes or pari passu Indebtedness tendered Loans pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.Section
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an any Asset Sale Sale, unless (i) the Company (or the 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 (evidenced as determined in good faith by the Board of Directors (including as to the value of all noncash consideration) and set forth in an Officers' Officer's Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor is in the form of cash and/or Cash Equivalents or Telecommunications Assets, and (iii) the Net Cash Proceeds received by the Company (or such Restricted Subsidiary, as the case may be) from such Asset Sale are applied within 360 days following the receipt of such Net Cash Proceeds, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) to the amount of any Senior Debt of extent the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be) elects, (a) to the permanent redemption or repurchase of outstanding Indebtedness (other than Subordinated Indebtedness) that consists is secured Indebtedness (including that in the case of (1a revolver or similar arrangement that makes credit available, such commitment is so permanently reduced by such amount) all or substantially all Indebtedness of the assets Company or such Restricted Subsidiary that ranks equally with the Notes but has a maturity date that is prior to the maturity date of one the Notes and/or (b) to reinvest such Net Cash Proceeds (or more Similar Businessesany portion thereof) in Telecommunications Assets. Notwithstanding anything herein to the contrary, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed with respect to be cash for purposes the reinvestment of this provision. Within 365 days after the receipt of any Net Proceeds Cash Proceeds, only proceeds from an Asset SaleSale of assets, the Company or Equity Interests, of a Foreign Subsidiary may apply be used to retire Indebtedness of a Foreign Subsidiary or reinvest in assets or Equity Interests of a Foreign Subsidiary. The balance of such Net Cash Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to after the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided described in the first sentence of this paragraph immediately preceding clauses (a) and (b), shall be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds equals or exceeds $10.0 million15.0 million (taking into account income earned on such Excess Proceeds), the Company shall will be required to make an a pro rata offer to all holders Holders of 1997 Notes and pari passu Indebtedness with comparable provisions requiring such Indebtedness to be purchased with the proceeds of such Asset Sale (an "Asset Sale Offer") to purchase the maximum principal amount (or accreted value in the case of 1997 Indebtedness issued with an original issue discount) of Notes and pari passu Indebtedness that may be purchased out of the Excess Proceeds, at an offer a purchase price in cash in an amount equal to 100% of the principal amount thereof or the accreted value thereof, as applicable, plus accrued and unpaid interest thereon to the date of purchasepurchase (subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), in accordance with the procedures set forth in Article 3 of this Indenture and the 1997 Indentureagreements governing such pari passu Indebtedness. To the extent that the aggregate amount any Excess Proceeds remain after consummation of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 millionOffer, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase may use such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase for any purpose not otherwise prohibited by this Indenture. If the maximum aggregate principal amount of Notes and pari passu Indebtedness that may be purchased out of tendered into such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes and pari passu Indebtedness to be purchased on a pro rata basisbasis in proportion to the respective principal amounts (or accreted values in the case of Indebtedness issued with an original issue discount) of the Notes and such other Indebtedness. Upon completion of such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds shall be reset at zerozero for purposes of the first sentence of this paragraph. The amount of (x) any liabilities (as shown on the Company's (or such Restricted Subsidiary's, as the case may be) most recent balance sheet), other than Subordinated Indebtedness of the Company or any Restricted Subsidiary that are assumed by the transferee of any such assets pursuant to an agreement that immediately releases the Company and all of its Restricted Subsidiaries from all liability in respect thereof, (y) Indebtedness of any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, if the Company and all of its Restricted Subsidiaries are immediately released from all Guarantees of payment of such Indebtedness and such Indebtedness is no longer the liability of the Company or any of its Restricted Subsidiaries, and (z) any securities, notes or other obligations received by the Company (or such Restricted Subsidiary, as the case may be) from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company (or such Restricted Subsidiary, as the case may be) into cash and/or Cash Equivalents (to the extent of the cash and/or Cash Equivalents received), will be deemed to be cash and/or Cash Equivalents for purposes of this provision. To the extent that the provisions of any securities laws or regulations shall conflict with the 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 the Asset Sale provisions of this Indenture by virtue thereof.
Appears in 1 contract
Samples: Metromedia Fiber Network Inc
Asset Sales. The Company Borrower shall not, and shall not permit any of its the Restricted Subsidiaries to, consummate an Asset Sale unless (i) sell, lease, convey or otherwise dispose of any assets (including by way of a sale-and-leaseback) other than sales of inventory in the Company ordinary course of business consistent with past practice (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Borrower shall be governed by the provisions of Section 8.03 and not by the provisions of this Section 8.02), or (ii) issue or sell Equity Interests of any of its Subsidiaries, in the case of either clause (i) or (ii) above, whether in a single transaction or a series of related transactions, (A) that have a fair market value in excess of the lesser of $10,000,000 or the amount (which amount is equal to $5,000,000 as of the Restatement Effective Date) specified in Section 4.10 the 1996 Indenture as amended from time to time (such lesser amount, the "Applicable Amount"), or (B) for net proceeds in excess of the Applicable Amount (each of the foregoing, an "Asset Sale"), unless (X) the Borrower (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board board of Directors with respect directors of the General Partner (and, if applicable, the audit committee of such board of directors) set forth in a certificate signed by a Responsible Officer and delivered to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionAdministrative Agent) of the assets or Equity Interests issued or sold or otherwise disposed of and (iiY) at least 80% of the consideration therefor received by the Company Borrower or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of (1) any Senior Debt liabilities (as shown on the Borrower's or such Subsidiary's most recent balance sheet or in the notes thereto), of the Company Borrower or such Restricted any Subsidiary (other than liabilities that is are by their terms subordinated in right of payment to the Obligations) that are assumed by the transferee in of any such transaction assets and (B2) any consideration notes or other obligations received by the Company Borrower or any such Subsidiary from such transferee that are immediately converted by the Borrower or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after ; and provided, further, that the receipt of 80% limitation referred to in this clause (Y) shall not apply to any Net Proceeds from an Asset Sale, Sale in which the Company may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to the acquisition of Permitted Securities, all or substantially all cash portion of the assets of one or more Similar Businessesconsideration received therefrom, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, determined in accordance with the procedures set forth foregoing proviso, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 80% limitation. Notwithstanding the foregoing, Asset Sales shall not be deemed to include (w) sales or transfers of accounts receivable by the Borrower to an SPE and by an SPE to any other Person in the 1997 Indenture. To the extent connection with any Accounts Receivable Securitization permitted by Section 8.05 (provided that the aggregate amount of 1997 Notes tendered pursuant such accounts receivable that shall have been transferred to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from held by all SPEs at any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100time shall not exceed 133% of the principal amount thereof plus accrued and unpaid interest thereonof Accounts Receivable Securitizations permitted to be outstanding under Section 8.05), if any, (x) any transfer of assets by the Borrower or any of its Subsidiaries to the date Borrower or a Restricted Subsidiary, (y) any transfer of purchase, assets by the Borrower or any of its Subsidiaries to any Person in accordance with exchange for other assets used in a line of business permitted under Section 8.15 and having a fair market value not less than that of the procedures set forth in this Indenture. To the extent that the aggregate amount assets so transferred and (z) any transfer of Notes or pari passu Indebtedness tendered assets pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use Permitted Investment or any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered sale-leaseback (including sale-leasebacks involving Synthetic Leases) permitted by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zeroSection 8.17.
Appears in 1 contract
Samples: Credit Agreement (Ferrellgas Partners Finance Corp)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) for any Asset Sale other than an Asset Sale of Unrestricted Margin Stock, at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (x) 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 Senior Debt Notes or any guarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed from further liability and (y) any securities, notes or other obligations received by the transferee in Company or any such transaction and (B) any consideration received Restricted Subsidiary from such transferee that are promptly converted by the Company or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 270 days after the receipt of any Net Proceeds from an Asset SaleSale other than an Asset Sale of Unrestricted Margin Stock, the Company may apply such Net Proceeds, at its option, (ia) to repay permanently reduce Indebtedness under a the Credit Facility, Facilities (and correspondingly reduce commitments thereunder) or to permanently reduce other Senior Indebtedness of the Company or any Guarantor or (iib) to the acquisition of a controlling interest in a Permitted SecuritiesBusiness, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business(collectively "Replacement Assets"). Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving credit Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales Sales, other than an Asset Sale of Unrestricted Margin Stock, that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall be required to make an offer Asset Sale Offer to all holders Holders of 1997 Senior Notes (an "Asset Sale Offer") and Additional Senior Notes to purchase the maximum principal amount of 1997 Senior Notes and Additional Senior Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in Section 3.09 of this Indenture. To the extent that the aggregate amount of Senior Notes or pari passu Indebtedness and Additional Senior Notes tendered pursuant to a Secondary an Asset Sale Offer is less than or equal to the Remaining Excess Proceeds, the Company (or such Subsidiary) may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Senior Notes or pari passu Indebtedness and Additional Senior Notes surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Senior Notes and Additional Senior Notes to be purchased on a pro rata basisbasis or (inasmuch as a precise pro rata selection may not be possible under the Indenture) by such other method as the Trustee shall deem fair and appropriate. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Indenture (Riddell Sports Inc)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (in the case of an Asset Sale or Asset Sales aggregating $10,000 or more, evidenced by an Officers' Certificate delivered to the Trustee which will include and, in the case of any Asset Sale having a fair market value or resulting in net proceeds in excess of $5.0 million, evidenced by a resolution of the Board of Directors with respect set forth in an Officers' Certificate delivered to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, provided that (A) the amount of (x) any Senior Debt liabilities (as shown on the Company's or such Subsidiary's most recent balance sheet) of the Company or such Restricted any Subsidiary (other than contingent liabilities and liabilities that is are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee in of any such transaction assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability and (By) any consideration securities, notes or other obligations received by the Company or any such Restricted Subsidiary, as Subsidiary from such transferee that are immediately converted by the case may be, that consists of Company or such Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 270 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (ia) to repay senior Indebtedness under a Credit Facility, of the Company or any Guarantor or (iib) to the acquisition making of a Permitted SecuritiesInvestment, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure in a Permitted Business or the acquisition of other long-term assets in a Similar Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall will be required to make an offer to all holders of 1997 Notes (an "Asset Sale Offer") Offer to purchase the maximum principal amount of 1997 Notes 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 unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Asset Sales. (a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to: (i) sell, consummate lease, convey or other dispose of any assets (including, without limitation, by way of a sale and leaseback) other than sales of inventory in the ordinary course of business consistent with past practices (provided that the sale, lease, conveyance or otherwise disposition of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole shall be governed by the provisions of Section 7.1 and/or Section 8.11 hereof and not by the provisions of this Section 8.5), or (ii) issue or sell Equity Interests of any of the Company's Subsidiaries, in the case of either clause (i) or (ii), whether in a single transaction or a series of related transactions (A) that have a fair market value in excess of $1.0 million or (B) for Net Proceeds in excess of $1.0 million (each of the foregoing, an "Asset Sale ----- Sale"), unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives ---- consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect set forth in an officers' certificate delivered to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionHolders) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of (x) any Senior Debt liabilities (as shown on the Company's or such Subsidiary's most recent balance sheet) of the Company or such Restricted any Subsidiary (other than contingent liabilities and liabilities that is are by their terms subordinated to the Notes or any Guarantee thereof) that are assumed by the transferee in of any such transaction assets pursuant to any arrangement releasing the Company or such Subsidiary from further liability and (By) any consideration notes or other obligations received by the Company or any such Restricted Subsidiary, as Subsidiary from such transferee that are immediately converted by the case may be, that consists of Company or such Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after Notwithstanding the receipt of any Net Proceeds from an foregoing, Asset Sale, the Company may apply such Net Proceeds, at its option, Sales shall not be deemed to include (i) a transfer of assets by the Company to repay Indebtedness under a Credit FacilityWholly Owned Subsidiary that is a Guarantor, or by a Wholly Owned Subsidiary to the Company or to another Wholly Owned Subsidiary that is a Guarantor, (ii) an issuance of Equity Interests by a Wholly Owned Subsidiary to the acquisition of Permitted Securities, all Company or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner to another Wholly Owned Subsidiary that is not prohibited a Guarantor, (iii) a Restricted Payment or Permitted Investment that is permitted by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence provisions -66- of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds Section 8.2 hereof and (Biv) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders conversion of Notes and Cash Equivalents into any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount form of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zeroCash Equivalents.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless : (i) the Company sell, lease, convey or otherwise dispose of any assets (or the Restricted Subsidiaryincluding, as the case may bewithout limitation, by way of a sale-and-leaseback) receives consideration at the time other than sales of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value inventory and other current assets in the event such Asset Sale involves aggregate consideration in excess ordinary course of $5.0 million) business (provided that the sale, lease, conveyance or other disposition of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of any Senior Debt of the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all of the assets of one the Company and its Restricted Subsidiaries taken as a whole shall be governed by the provisions of Sections 4.15 and 5.01 hereof), or more Similar Businesses(ii) the issue of Equity Interests of any of the Company's Restricted Subsidiaries or sale of Equity Interests of any of the Company's Restricted Subsidiaries, in the case of either clause (i) or (ii) above, whether in a single transaction or a series of related transactions, (2a) other long-term that have a fair market value in excess of $1,000,000 or (b) for net proceeds in excess of $500,000 (each of the foregoing, an "Asset Sale"). Notwithstanding the foregoing: (i) a transfer of assets that are used by any Person to a Restricted Subsidiary of such Person, or useful in one by a Restricted Subsidiary of any Person to such Person or more Similar Businesses to another Restricted Subsidiary of such Person; (ii) an issuance of Equity Interests by a Restricted Subsidiary of any Person to such Person or to another Restricted Subsidiary of such Person; and (3iii) Permitted Securities shall a Restricted Payment that is permitted by the Section 4.07 will not be deemed to be cash for purposes of this provisionAsset Sales. Within 365 180 days after the receipt of any Net Proceeds from an Asset Sale, the Company or such Restricted Subsidiary, as the case may be, may apply such Net ProceedsProceeds from such Asset Sale, at its option, either, (i) reduce Indebtedness (and to repay Indebtedness under a Credit Facility, correspondingly reduce commitments with respect to any revolving credit facility) such that the Debt to Cash Flow Ratio after such Asset Sale is lower than before such Asset Sale or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businessesacquire, or the making of cause a capital expenditure or the acquisition of other long-term Restricted Subsidiary to acquire, assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indentureuseful to its business. Any Net Proceeds from such Asset Sales Sale, other than Equity Interests or debt securities issued by a Person which has Investment Grade Senior Debt) that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". When ." Within five days of each date on which the aggregate amount of Excess Proceeds exceeds $10.0 5 million, the Company shall make an offer to all holders of 1997 Notes (an "commence a pro rata Asset Sale Offer") Offer pursuant to Section 3.09 hereof to purchase the maximum principal amount of 1997 Senior Notes that may be purchased out of the Excess Proceeds, Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof on the date fixed for the closing of such offer plus accrued and unpaid interest to and Liquidated Damages, if any, thereon as of the date of purchase, purchase in accordance with the procedures set forth in the 1997 IndentureSection 3.09 hereof. To the extent that the aggregate amount of 1997 Senior Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining from Excess Proceeds, the Company may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall will be deemed to be reset at zero.
Appears in 1 contract
Samples: Adelphia Communications Corp
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined by the Board of Directors in good faith, whose determination shall be conclusive evidence thereof and shall be evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, provided that (A) the amount of (x) any Senior Debt liabilities (as shown on the Company's or such Subsidiary's most recent balance sheet), of the Company or such Restricted any Subsidiary (other than contingent liabilities and liabilities that is are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee in of any such transaction assets pursuant to an agreement that releases the Company or such Subsidiary from further liability and (By) any consideration notes or other obligations received by the Company or any such Restricted Subsidiary, as Subsidiary from such transferee that are immediately converted by the case may be, that consists of Company or such Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (ia) to permanently reduce, repurchase, repay or redeem term Indebtedness under a the New Credit FacilityAgreement or any one or more successor or additional bank facilities, (b) to permanently reduce or repay revolving Indebtedness (and to correspondingly reduce commitments with respect thereto) under the New Credit Agreement or any one or more successor or additional bank facilities, or (iic) to the acquisition of Permitted Securitiesa controlling interest in another business, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets assets, in each case, in the same or a Similar Businesssimilar line of business as the Company was engaged in on the date of such Asset Sale or another line of business that is reasonably related thereto. Pending the final application of any such Net Proceeds, the Company may temporarily reduce revolving Indebtedness under a the New Credit Facility Agreement or any one or more successor or additional bank facilities or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.invested
Appears in 1 contract
Samples: Indenture (Printpack Inc)
Asset Sales. The Company Stater Bros. shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (iother than a Qualified Santee LLC Interest Sale) the Company unless: (a) Stater Bros. (or the 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 (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and of; (b) such fair market value is evidenced by (i) for any Asset Sale resulting in Net Proceeds less than or equal to $1.0 million, an Officers' Certificate delivered to the Trustee or (ii) for any Asset Sale resulting in Net Proceeds in excess of $1.0 million, a resolution of Stater Bros.' Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and (c) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of any Senior Debt of the Company Stater Bros. or such Restricted Subsidiary that is assumed by in the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiaryform of cash. For purposes of this provision, as the case may be, that consists of (1) all or substantially all each of the assets of one or more Similar Businesses, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities following shall be deemed to be cash: (a) any liabilities (as shown on Stater Bros.' or such Restricted Subsidiary's most recent balance sheet) of Stater Bros. or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases Stater Bros. or such Restricted Subsidiary from further liability; and (b) any securities, notes or other obligations received by Stater Bros. or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by Stater Bros. or such Restricted Subsidiary into cash for purposes (to the extent of the cash received in that conversion); provided, that any non-cash consideration that becomes Net Proceeds shall thereafter be subject to the provisions of the second paragraph of this provisionSection 4.10. Within 365 days after Upon the date of consummation of any Asset Sale by Stater Bros. or any Restricted Subsidiary which, taken individually or together with all such Asset Sales since the date of this Indenture, results in the receipt of any Net Proceeds in excess of $10.0 million, such Net Proceeds and all Net Proceeds from an all such Asset Sales consummated concurrently therewith or consummated thereafter (such first consummation date and each such date thereafter, a "Consummation Date") shall be applied by Stater Bros. or such Restricted Subsidiary within 12 months of the relevant Consummation Date (or, in the event of a Qualified Santee LLC Interest Sale, within 24 months of the Company may apply such Net Proceeds, relevant Consummation Date) at its optionelection to either: (a) investments in assets or businesses in the same line of business as Stater Bros. or such Restricted Subsidiary; (b) the permanent repayment of (and permanent reduction of commitments, if any, under) any Indebtedness (i) that is secured by or incurred to repay Indebtedness under a Credit Facility, construct such assets or (ii) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure Restricted Subsidiary; (c) a combination of payment and investment permitted by the foregoing clauses (a) and (b); or the acquisition of other long-term assets in a Similar Business. Pending (d) pending the final ----------- --- application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility temporary reduction of revolving credit borrowings or otherwise invest other investment of such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in clauses (a), (b) or (c) of the first sentence of this preceding paragraph shall be deemed to constitute ----------- --- --- "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company Stater Bros. shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer in accordance with Section ------- 3.09 to all Holders of Notes and any all holders of other Indebtedness that ranks is pari ---- passu with the Notes that, by its terms, requires containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest thereonand Liquidated Damages, if any, to the date of purchase, and will be payable in accordance with the procedures set forth in this Indenturecash. To the extent that the aggregate amount If any Excess Proceeds remain after consummation of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess ProceedsOffer, the Company Stater Bros. or such Restricted Subsidiary may use any Remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes or and such other pari passu Indebtedness surrendered by Holders thereof tendered into such Asset Sale Offer exceeds the amount of Remaining such Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisbasis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. Stater Bros. shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of this Indenture, Stater Bros. shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Samples: Stater Bros Holdings Inc
Asset Sales. The On or prior to the Remarketing Settlement Date, the Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale in excess of $1,000,000 unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to Directors, except for sales of Securitization Related Assets, which require no such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionresolution) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (x) any Senior Debt liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet, excluding contingent liabilities and trade payables), of the Company or any such Restricted Subsidiary that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed from further liability and (y) any securities, notes or other obligations received by the transferee in Company or any such transaction and (B) any consideration received 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, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary may apply such Net Proceeds, at its option, (ia) to repay permanently reduce Senior Indebtedness under a Credit Facility(other than the Debentures or the 9 7/8% Senior Notes or the Subsidiary Guarantees thereof) of the Company or of the Subsidiary Guarantors, or (iib) to the acquisition an Investment (excluding Guarantees of Permitted SecuritiesIndebtedness or other obligations), all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets tangible assets, in each case in or with respect to a Similar Related Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds"." If at the time of the Asset Sale Offer the Trust is the owner of all of the Debentures, the Trust shall make the Asset Sale Offer for the Securities in accordance with the procedures set forth in Section 7.16 of the Declaration, and the Company shall repurchase the Debentures exchanged by the Trust for the Securities as set forth in the Declaration. Promptly following such exchange, the Company shall (but in any case not later than five days after the Asset Sale Purchase Date) mail or deliver to each tendering holder of Securities an amount equal to 100% of the principal amount of the Debentures exchanged therefor plus accrued and unpaid interest thereon, including Additional Interest to the date of purchase. The following procedures apply to an Asset Sale Offer when the Trust is not the owner of all of the Debentures: When the aggregate amount of Excess Proceeds exceeds $10.0 million5,000,000, the Company shall be required to make an offer to all holders Holders of 1997 Debentures and, at the Company's election, the 9 7/8% Senior Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes Debentures (and, if applicable, the 9 7/8% Senior Notes) 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereonAdditional Interest, if any, thereon to the date of purchase, in accordance with the procedures set forth in this IndentureIndenture and in the indenture governing the 9 7/8% Senior Notes. To the extent that the aggregate amount of Notes or pari passu Indebtedness Debentures (and, if applicable, the 9 7/8% Senior Notes) tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. An Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the "Asset Sale Offer Period"). No later than five Business Days after the termination of the Asset Sale Offer Period (the "Asset Sale Purchase Date"), the Company shall purchase the principal amount of Debentures (and, if applicable, the 9 7/8% Senior Notes) required to be purchased pursuant to this covenant (the "Asset Sale Offer Amount") or, if less than the Asset Sale Offer Amount has been tendered, all Debentures (and, if applicable, the 9 7/8% Senior Notes) tendered in response to the Asset Sale Offer. Payment for any Debentures (and, if applicable, the 9 7/8% Senior Notes) so purchased shall be made in the same manner as interest payments are made. If the Asset Sale Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Additional Interest, if any, shall be paid to the Person in whose name a Debenture is registered at the close of business on such record date, and no additional interest or Additional Interest, if any, shall be payable to Holders who tender Debentures pursuant to the Asset Sale Offer. On or before the Asset Sale Purchase Date, the Company shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Asset Sale Offer Amount of Debentures (and, if applicable, the 9 7/8% Senior Notes) or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount has been tendered (and, if applicable, the 9 7/8% Senior Notes), all Debentures (and, if applicable, the 9 7/8% Senior Notes) tendered, and shall deliver to the Trustee an Officers' Certificate stating that such Debentures (and, if applicable, the 9 7/8% Senior Notes) or portions thereof were accepted for payment by the Company in accordance with the terms of this covenant. The Company, the Depository or the Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Asset Sale Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Debentures (and, if applicable, the 9 7/8% Senior Notes) tendered by such Holder and accepted by the Company for purchase. The Company shall promptly issue a new Debenture, and the Trustee, upon written request from the Company shall authenticate and mail or deliver such new Debenture to such Holder, in a principal amount equal to any unpurchased portion of the Debenture surrendered. Any Debenture not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Asset Sale Purchase Date.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced value, as determined in good faith by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to of the Company or such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) Restricted Subsidiary, of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this Section 4.10 each of the following shall be deemed to be cash: (a) any liabilities (as shown on the Company's or such Restricted Subsidiary, as 's most recent balance sheet) of the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that (Aare by their terms subordinate to the Notes) that are assumed by the amount transferee of any Senior Debt of such assets that releases the Company or such Restricted Subsidiary from further liability or, in the case of the sale of Capital Stock, that is are assumed by the transferee in any such transaction by operation of law and (Bb) any consideration securities, notes or other obligations received by the Company or such Restricted Subsidiary from such transferee that are promptly (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash (to the extent of the cash received in that conversion). Notwithstanding the immediately preceding paragraph, the Company and its Restricted Subsidiaries shall be permitted to consummate an Asset Sale without complying with such paragraph if (1) the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of that consists of (1) all or substantially all Asset Sale at least equal to the fair market value of the assets or other property sold, issued or otherwise disposed of one (as determined in good faith by the Board of Directors of the Company or more Similar Businesses, the applicable Restricted Subsidiary) and (2) at least 75% of the consideration of that Asset Sale constitutes assets or other long-term property of a kind usable by the Company or its Restricted Subsidiaries in the business of the Company and its Restricted 49 Subsidiaries as conducted by the Company and its Restricted Subsidiaries on the date of this Indenture; PROVIDED that any consideration not constituting assets that are used or useful property of a kind usable by the Company and its Restricted Subsidiaries in one the business conducted by them on the date of this Indenture and received by the Company or more Similar Businesses and (3) Permitted Securities shall be deemed any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be cash for purposes consummated under this paragraph will constitute Net Proceeds subject to the provisions of this provisionthe two succeeding paragraphs. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the applicable Restricted Subsidiary may apply such Net Proceeds, at its option, Proceeds (i) to repay Indebtedness under a Credit FacilitySenior Debt and, or if Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto, (ii) to the acquisition of Permitted Securities, acquire all or substantially all of the assets of one or more Similar Businessesof, or a majority of the making Voting Stock of, another Person (or business unit or division of such Person); PROVIDED that the primary business of such Person (or unit or division) is a Permitted Business, (iii) to fund obligations of the Company or any Restricted Subsidiary under the Partnership Parks Agreements or the Subordinated Indemnity Agreement, (iv) to acquire Capital Stock of a Restricted Subsidiary of the Company held by Persons other than the Company or any Restricted Subsidiary, (v) to make a capital expenditure or the acquisition of expenditure, (vi) to acquire other long-term assets that are used or useful in a Similar BusinessPermitted Business or (vii) to commit to undertake any of the actions specified in clauses (ii), (iii), (iv), (v) or (vi) above, PROVIDED that such action is consummated within 90 days from the end of such 365-day period. Pending the final application of any such Net Proceeds, the Company or such Restricted Subsidiary may temporarily reduce Indebtedness under a Credit Facility revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this preceding paragraph shall be deemed to will constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 20.0 million, the Company shall will be required to make an offer to all Holders and all holders of 1997 other Indebtedness of the Company that is PARI PASSU with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redemptions with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes and such other PARI PASSU Indebtedness of the Company that may be purchased out of the Excess Proceeds, at an . The offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an any Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, repurchase and will be payable in accordance with the procedures set forth in this Indenturecash. To the extent that the aggregate amount If any Excess Proceeds remain after consummation of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess ProceedsOffer, the Company may use any Remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes or pari passu and such other Indebtedness surrendered by Holders thereof tendered into such Asset Sale Offer exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes and such other Indebtedness to be purchased on a pro rata basis. Upon completion of such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds shall be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Company will comply with the applicable securities laws and 50 regulations and will not be deemed to have breached its obligations under this covenant by virtue thereof.
Appears in 1 contract
Samples: Six Flags Inc
Asset Sales. The Company Borrower shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company Borrower (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee Administrative Agent which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 80% of the consideration therefor received by the Company Borrower or such Restricted Subsidiary, as the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, that (A) the amount of any Senior Debt of the Company Borrower or such Restricted Subsidiary that is assumed by the transferee in any such transaction and (B) any consideration received by the Company Borrower or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all of the assets of one or more Similar Businesses, (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within The Net Cash Proceeds from any Asset Sale shall be applied in accordance with Section 2.4. Subject to Section 2.4, within 365 days after the receipt of any Net Proceeds from an any Asset Sale, the Company Borrower may apply such Net Proceeds, at its option, (i) to repay Indebtedness under a Credit Facility, or (ii) to the acquisition of acquire Permitted Securities, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Business. Pending the final application of any such Net Proceeds, the Company Borrower may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this IndentureAgreement. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company Borrower shall make an offer to all holders of 1997 Notes (an "Asset Sale OfferASSET SALE OFFER") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess ProceedsREMAINING EXCESS PROCEEDS") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company Borrower will be required to make an offer to all Holders of Notes repay the Bridge Loans and any other Indebtedness that ranks pari passu with the Bridge Loans (including, without limitation, the May 1998 Notes and the December 1998 Notes) that, by its terms, requires the Company Borrower to offer to repay or repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale OfferSECONDARY ASSET SALE OFFER") to repay the maximum principal amount of Bridge Loans and purchase the maximum principal amount of Notes and pari passu Indebtedness that may be repaid or purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of repayment or purchase, in accordance with the procedures set forth in this IndentureAgreement. To the extent that the aggregate amount of Notes or Bridge Loans and pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company Borrower may use any Remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes Bridge Loans or pari passu Indebtedness surrendered by Holders holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale Offer, the Company Borrower shall repay or repurchase such Indebtedness on a pro rata basis and the Trustee Administrative Agent shall select the Bridge Loans and Notes to be purchased repaid on a pro rata basis. Upon completion of such offer to repay or purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided that (A) the amount of (x) any Senior Debt liabilities (as shown on the Company's or such Subsidiary's most recent balance sheet), of the Company or such Restricted any Subsidiary (other than contingent liabilities and liabilities that is are by their terms subordinated to the Notes or any guarantee thereof) that are assumed by the transferee in of any such transaction assets pursuant to a customary novation agreement that releases the Company or such Subsidiary from further liability and (By) any consideration securities, notes or other obligations received by the Company or any such Restricted Subsidiary, as Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the case may be, that consists of Company or such Subsidiary into cash (1) all or substantially all to the extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 180 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (ia) to repay Indebtedness under a Credit Facility, or (iib) to the acquisition of Permitted Securities, all or substantially all of the assets of one or more Similar Businessesof, or all of the Voting Stock of, another Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets that are used or useful in a Similar BusinessPermitted Business (and the payment of related expenses) or (c) in the case of Net Proceeds received by the Company pursuant to the Satellite Lease Arrangements, for working capital purposes. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". EXCESS PROCEEDS." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall will be required to make an offer to all holders of 1997 Notes (an "Asset Sale Offer") Offer to purchase the maximum principal amount of 1997 Notes 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount any Excess Proceeds remain after consummation of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess ProceedsOffer, the Company may use any Remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes or pari passu Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero. Notwithstanding the foregoing, the Company and its Subsidiaries will be permitted to consummate Asset Sales of Communications Assets without complying with the first paragraph of this covenant if (x) at least 75% of the consideration received by the Company and its Subsidiaries in respect of such Asset Sale constitutes either Communications Assets, cash or Cash Equivalents, and (y) any Net Proceeds received by the Company or any of its Subsidiaries in connection with such Asset Sale are applied in accordance with the foregoing paragraph and (z) the Company and its Subsidiaries receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in a Officer's Certificate delivered to the trustee, such determination to be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if such fair market value exceeds $1.0 million) of the Communications Assets sold or otherwise disposed of.
Appears in 1 contract
Samples: Amsc Acquisition Co Inc
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless unless: (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of of; and (ii) except with respect to Designated Assets, at least 8075% of the consideration therefor received by the Company or such Restricted SubsidiarySubsidiary is in the form of cash or Cash Equivalents. Only for purposes of this provision, as each of the case may be, consists of following shall be deemed to be cash, Cash Equivalents and/or Marketable Securities; provided, however, that : (A) any liabilities (as shown on the amount 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) that are assumed by the transferee of any Senior Debt of such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed by the transferee in any such transaction from further liability; and (B) any consideration securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businesses, (2) other long-term assets cash received in that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provisionconversion). Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, : (i) to repay Indebtedness which ranks equally with the Notes under a Credit FacilityFacility and, or if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; (ii) to the acquisition of Permitted Securities, acquire all or substantially all of the assets of one or more Similar Businessesof, or a majority of the making of Voting Stock of, another Permitted Business; (iii) to make a capital expenditure in a Permitted Business; or the acquisition of (iv) to acquire other long-term assets that are used or useful in a Similar Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenturehereby. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this preceding paragraph shall be deemed to will constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 20.0 million, the Company shall make an offer to all holders of 1997 Notes (an "Asset Sale Offer") to all Holders of Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Supplemental Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of 1997 Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer will be equal to 100% of the principal amount thereof plus accrued and unpaid interest to the date of purchase, and will be payable in accordance with the procedures set forth in the 1997 Indenturecash. To the extent that the aggregate amount If any Excess Proceeds remain after consummation of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited hereby. If the aggregate principal amount of Notes or and such other pari passu Indebtedness surrendered by Holders thereof tendered into such Asset Sale Offer exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basisbasis based on the principal amount of Notes and such other pari passu Indebtedness tendered. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. 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 each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 1.01(15)(a) of this Supplemental Indenture, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Supplemental Indenture by virtue of such conflict.
Appears in 1 contract
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless unless: (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and of, (ii) such fair market value is determined by the Company's Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee, and (iii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following shall be deemed to be cash: (a) any liabilities (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet), as of the case may be, consists of cash, Cash Equivalents and/or Marketable Securities; provided, however, Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that (Aare by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the amount transferee of any Senior Debt of such assets pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed from further liability, and (b) any securities, notes or other obligations received by the transferee in Company or any such transaction and Restricted Subsidiary from such transferee that are contemporaneously (Bsubject to ordinary settlement periods) any consideration received converted by the Company or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businesses, (2) other long-term assets cash received in that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provisionconversion). Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, Proceeds at its option, : (i) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness under a Credit Facilityto correspondingly reduce commitments with respect thereto, or (ii) to the acquisition of Permitted Securities, acquire all or substantially all of the assets of one or more Similar Businessesof, or a majority of the making of Voting Stock of, another Permitted Business, (iii) to make a capital expenditure expenditure, or the acquisition of (iv) to acquire other long-term assets that are used or useful in a Similar Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this preceding paragraph shall be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 million, the Company shall make an Asset Sale offer to all Holders of Notes and all holders of 1997 other Indebtedness that is pari passu with the Notes (an "Asset Sale Offer") containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of 1997 Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds, at an . The offer price in cash in an amount any Asset Sale Offer shall be equal to 100% of the principal amount thereof plus accrued and unpaid interest to the Accreted Value (if such date of purchasepurchase is prior to November 1, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds"2004) and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereonLiquidated Damages, if any, to the date of purchase, or 100% of the principal amount (if such date of purchase is on or after November 1, 2004) plus accrued and unpaid interest and Liquidated Damages, if any, to the date of purchase, and will be payable in accordance with the procedures set forth in this Indenturecash. To the extent that the aggregate amount If any Excess Proceeds remain after consummation of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess ProceedsOffer, the Company may use any Remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount and/or Accreted Value, as the case may be, of Notes or and such other pari passu Indebtedness surrendered by Holders thereof tendered into such Asset Sale Offer exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of such offer to purchaseeach Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero. 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 each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sales provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of this Indenture by virtue of such conflict.
Appears in 1 contract
Samples: Pledge and Security Agreement (Unwired Telecom Corp)
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, provided that (A) the amount of (x) any Senior Debt 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 pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed from further liability and (y) any securities, notes or other obligations received by the transferee in Company or any such transaction and Restricted Subsidiary from such transferee that are contemporaneously (Bsubject to ordinary settlement periods) any consideration received converted by the Company or such Restricted Subsidiary, as Subsidiary into cash (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall be deemed to be cash for purposes of this provision. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net ProceedsProceeds (or an amount of cash equal thereto), at its option, (ia) to permanently repay (and, if applied to revolving credit loans, reduce the commitments under) Senior Indebtedness under of the Company or a Credit Facility, Guarantor or (iib) to the acquisition of Permitted Securities, all or substantially all a majority of the assets of one or more Similar Businessesof, or a majority of the Voting Stock of, another Permitted Business, the making of a capital expenditure or the acquisition of other long-term assets that are used or useful in a Similar Permitted Business. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility revolving credit borrowings or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 5.0 million, the Company shall be required to make an offer to all Holders of Notes and all holders of 1997 Notes other Indebtedness containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes and such other Indebtedness 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 unpaid interest to the date of purchase, in accordance with the procedures set forth in the 1997 Indenture. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in this IndentureIndenture and such other Indebtedness. To the extent that the aggregate amount any Excess Proceeds remain after consummation of Notes or pari passu Indebtedness tendered pursuant to a Secondary an Asset Sale Offer is less than the Remaining Excess ProceedsOffer, the Company may use any Remaining such Excess Proceeds for general corporate purposesany purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes or pari passu and such other Indebtedness tendered into such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes and such other Indebtedness to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Iae Inc
Asset Sales. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board set forth in an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 millionTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, Cash Equivalents and/or Marketable Securities; provided, however, provided that (A) the amount of (x) any Senior Debt 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 pursuant to a customary novation agreement that releases the Company or such Restricted Subsidiary that is assumed from further liability with respect thereto and (y) any notes or other obligations received by the transferee in Company or any such transaction and (B) any consideration received Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary, as Subsidiary into cash within 90 days following such Asset Sale (to the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businessescash received), (2) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities shall will be deemed to be cash for purposes of this provision. 28 Within 365 270 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (ia) to repay reduce Senior Indebtedness under of the Company, (b) to reduce Senior Indebtedness of a Credit FacilitySubsidiary Guarantor, or (iic) to an investment in a Permitted Business or assets used in a Permitted Business or the acquisition of Permitted Securities, all or substantially all Company may commit to apply such Net Proceeds as set forth in this clause (c) so long as such investment is consummated within 360 days of the assets receipt of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets in a Similar Businesssuch Net Proceeds. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under a Credit Facility or otherwise invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first preceding sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 25.0 million, the Company shall will be required to make an offer to all holders Holders of 1997 Notes (an "Asset Sale Offer") to purchase the maximum principal amount of 1997 Notes 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 unpaid interest thereon to the date of purchase, in accordance with the procedures set forth in the 1997 IndentureSection 3.09. To the extent that the aggregate amount of 1997 Notes tendered pursuant to an Asset Sale Offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount of Notes or pari passu Indebtedness surrendered by Holders thereof exceeds the amount of Remaining Excess Proceeds in a Secondary Asset Sale OfferProceeds, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes to be purchased in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not so listed, on a pro rata basis. Upon completion of such offer to purchaseAsset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Collateral Pledge and Security Agreement (Global Broadcasting Systems Inc/Fa)
Asset Sales. The Company shall not, and shall not ----------- permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by an Officers' Certificate delivered to the Trustee which will include a resolution of the Board of Directors with respect to such fair market value in the event such Asset Sale involves aggregate consideration in excess of $5.0 million) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 8075% of the consideration therefor received by the Company or such Restricted Subsidiary, as Subsidiary is in the case may be, consists form of cash, cash or Cash Equivalents and/or Marketable SecuritiesEquivalents; provided, however, provided -------- that (A) the amount of (x) any Senior Debt 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 liabilities that are by their terms subordinated to the Securities or, in the case of liabilities of a Guarantor, the Security Guarantee of such Guarantor) that are assumed by the transferee of any such assets, or from which the Company and its Restricted Subsidiaries are released in writing by the creditor with respect thereto, 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 that is assumed by into cash (to the transferee in any such transaction and (B) any consideration received by the Company or such Restricted Subsidiary, as the case may be, that consists of (1) all or substantially all extent of the assets of one or more Similar Businesses, (2cash received) other long-term assets that are used or useful in one or more Similar Businesses and (3) Permitted Securities within 180 days after receipt shall be deemed deemed, in each case, to be cash for purposes of this provision; provided, further, however, that this clause (ii) shall not -------- ------- ------- apply to any sale of Equity Interests of or other Investments in Unrestricted Subsidiaries. Within 365 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company may apply such Net Proceeds, at its option, (ia) to repay Indebtedness under Senior Debt, Debt of any Restricted Subsidiary or Pari Passu Debt (other than Debt owed to the Company or a Credit FacilitySubsidiary of the Company, and provided that if the Company -------- shall so reduce Pari Passu Debt, it will equally and ratably make an Asset Sale Offer (in accordance with the procedures set forth in Section 3.09 for an Asset Sale Offer) to all Holders), (b) to invest in properties and assets that will be used or useful in the business of the Company or any of its Subsidiaries or (iic) to the acquisition of Permitted Securitiesa controlling interest in another business, all or substantially all of the assets of one or more Similar Businesses, or the making of a capital expenditure or the acquisition of other long-term assets assets, in a Similar Business. Pending each case, that will be used or useful in the final application business of any such Net Proceeds, the Company may temporarily reduce Indebtedness under or any of its Restricted Subsidiaries; provided that if during such 360-day period the Company or a Credit Facility or otherwise invest -------- Restricted Subsidiary enters into a definitive agreement committing it to apply such Net Proceeds in any manner that is accordance with the requirements of clause (b) or (c) such 360-day period will be extended for a period not prohibited by this Indentureto exceed 180 days with respect to the amount of Net Proceeds so committed until required to be paid in accordance with such agreement (or, if earlier, until termination of such agreement). Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall will be deemed to constitute "Excess Proceeds". ." When the aggregate amount of Excess Proceeds exceeds $10.0 10 million, the Company shall (i) make an offer to all holders Holders of 1997 Notes Securities, and (ii) prepay, purchase or redeem (or make an offer to do so) any other Pari Passu Debt of the Company in accordance with provisions requiring the Company to prepay, purchase or redeem such Debt with the proceeds from any Asset Sales (or offer to do so), pro rata in proportion to the respective principal amounts (or accreted value, as applicable) of the Securities and such other Debt required to be prepaid, purchased or redeemed or tendered for, in the case of the Securities pursuant to such offer (an "Asset Sale Offer") ), to purchase the maximum principal amount of 1997 Notes Securities that may be purchased out of such pro rata portion of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the their principal amount thereof plus 57 accrued and unpaid interest and Liquidated Damages (or, if prior to the Full Accretion Date, 100% of the Accreted Value thereof on the date of purchase, plus Liquidated Damages (if any) to 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 in the 1997 IndentureSection 3.09). To the extent that the aggregate principal amount (or, if prior to the Full Accretion Date, the aggregate Accreted Value) of 1997 Notes Securities and Pari Passu Debt tendered pursuant to an Asset Sale Offer or other offer is less than the remaining Excess Proceeds ("Remaining Excess Proceeds") and the sum of (A) such amount of Remaining Excess Proceeds and (B) the Remaining Excess Proceeds from any subsequent Asset Sale Offers exceeds $3.0 million, the Company will be required to make an offer to all Holders of Notes and any other Indebtedness that ranks pari passu with the Notes that, by its terms, requires the Company to offer to repurchase such Indebtedness with such Remaining Excess Proceeds (a "Secondary Asset Sale Offer") to purchase the maximum principal amount of Notes and pari passu Indebtedness that may be purchased out of such Remaining Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase, in accordance with the procedures set forth in this Indenture. To the extent that the aggregate amount of Notes or pari passu Indebtedness tendered pursuant to a Secondary Asset Sale Offer is less than the Remaining Excess Proceeds, the Company may use any Remaining remaining Excess Proceeds for general corporate purposes. If the aggregate principal amount (or Accreted Value, as the case may be) of Notes or pari passu Indebtedness Securities surrendered by Holders thereof exceeds the amount pro rata portion of Remaining such Excess Proceeds in a Secondary Asset Sale Offerto be used to purchase Securities, the Company shall repurchase such Indebtedness on a pro rata basis and the Trustee shall select the Notes Securities to be purchased on a pro rata basis. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset at zero.
Appears in 1 contract
Samples: Harborside Healthcare Corp
