Disposition of Proceeds of Asset Sales. The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, consummate any Asset Sale unless (i) the consideration received in respect of such Asset Sale is at least equal to the Fair Market Value of the assets subject to such Asset Sale and (ii) at least 75% of the value of the consideration therefrom received by the Company or such Subsidiary is in the form of (A) cash or Cash Equivalents, (B) assets to be owned by and used in the business of the Company or any of its Subsidiaries or (C) the assumption by the Person acquiring the assets in such Asset Sale of Indebtedness of the Company or any of its Subsidiaries with the effect that none of the Company or any of its Subsidiaries will have any obligation with respect to such Indebtedness. The Company or the applicable Subsidiary, as the case may be, will either (x) within 270 calendar days apply the Net Asset Sale Proceeds from such Asset Sale to permanently repay Indebtedness under a Bank Credit Agreement, including a permanent reduction in any related loan commitment thereunder, and, to the extent required, to tender for and repurchase any Existing Notes or (y) commit within 270 calendar days of such Asset Sale to apply the Net Asset Sale Proceeds from such Asset Sale, and within 360 calendar days thereof (the "Reinvestment Date") apply such Net Asset Sale Proceeds, to invest in a Permitted Related Investment or (z) apply any Net Asset Sale Proceeds from any Asset Sale that are not applied pursuant to clause (x) or (y) above (such amounts, "Excess Proceeds") as provided below. When the aggregate amount of Excess Proceeds equals or exceeds (euro)5,000,000, the Company will make an offer to purchase (an "Asset Sale Offer") ratably from all Holders of the Notes and all holders of notes of the Company which rank pari passu with the Notes and which notes require an equivalent asset sale offer (the "Other Notes"), not more than 60 calendar days thereafter (the "Excess Proceeds Payment Date") that portion of outstanding Notes and Other Notes purchasable with such Excess Proceeds, at a price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, thereon to the Excess Proceeds Payment Date. To the extent that the Asset Sale Offer is not fully subscribed, the Company may use the unutilized portion of such Excess Proceeds for general corporate purposes. If the aggregate principal amount, plus accrued and unpaid interest, if any, thereon of Notes validly tendered and not withdrawn by Holders thereof exceeds the Excess Proceeds available to purchase such Notes, Notes to be purchased will be selected by the Trustee on a pro rata basis based upon amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of (euro)1,000, or integral multiples thereof, shall be purchased). Upon completion of such Asset Sale Offer, the amount of Excess Proceeds will be reset to zero. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 hereof, the Surviving Entity shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of the second paragraph of this Section 4.08, and will comply with the Asset Sale provisions of this Indenture with respect to such deemed sale as if it were an Asset Sale. In addition, the Fair Market Value of such properties and assets of the Company or its Subsidiaries deemed to be sold pursuant to this paragraph will be deemed to be Net Asset Sale Proceeds for purposes of the Asset Sale provisions of this Indenture. If an offer is made to repurchase the Notes in an Asset Sale Offer, the Company will comply with any tender offer rules under the Exchange Act, including, but not limited to, Rule 14e-1 thereunder, and any other applicable laws, rules and regulations in connection with any such offer. To the extent that the provisions of any United States federal or state securities laws and regulations conflict with this Section 4.08, the Company shall comply with the applicable United States federal or state securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.08 by virtue thereof. If the Company is required to make an Asset Sale Offer, the Company or, at the Company's request, the Trustee in the Company's name and at the Company's sole expense, shall mail, not less than 30 calendar days nor more than 60 calendar days preceding the Excess Proceeds Payment Date, a notice to the Holders with, if mailed by the Company, a copy to the Trustee stating, among other things: (1) that such Holders have the right to require the Company to apply the available Excess Proceeds to repurchase such Notes at a purchase price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the Excess Proceeds Payment Date;
Appears in 1 contract
Sources: Indenture (Antenna Tv Sa)
Disposition of Proceeds of Asset Sales. The Company (a) Alderwoods will not, and will not permit any of its Restricted Subsidiaries (other than Rose Hills Holdings Corp., a Delaware corporation, or any Subsidiary thereof) to, directly or indirectly, consummate make any Asset Sale unless (i) Alderwoods or such Restricted Subsidiary, as the case may be, receives consideration received in respect at the time of such Asset Sale is at least equal to the Fair Market Value of the shares or assets subject to such Asset Sale sold or otherwise disposed of and (ii) except with respect to assets listed on Schedule 4.12 hereto, at least 75% of the value such consideration consists of the consideration therefrom received by the Company or such Subsidiary is in the form of (A) cash or Cash Equivalents, (B) assets . To the extent the Net Cash Proceeds of any Asset Sale are not required to be owned applied to repay, and permanently reduce the commitments under, the Exit Facility (as required by and used in the business terms thereof) or are applied to payment of the Company Two-Year Notes or Five-Year Notes (or with respect to assets of Rose Hills Holding Corp., a Delaware corporation, or any of its Subsidiaries or (C) Subsidiaries, to repay Indebtedness under the assumption by the Person acquiring the assets in such Asset Sale of Indebtedness of the Company or any of its Subsidiaries with the effect that none of the Company or any of its Subsidiaries will have any obligation with respect to such Indebtedness. The Company Rose Hills Credit Agreement or the applicable Rose Hills Indenture), Alderwoods or such Restricted Subsidiary, as the case may be, will either (x) may, within 270 calendar days apply the Net Asset Sale Proceeds from such Asset Sale to permanently repay Indebtedness under a Bank Credit Agreement, including a permanent reduction in any related loan commitment thereunder, and, to the extent required, to tender for and repurchase any Existing Notes or (y) commit within 270 calendar days of such Asset Sale to apply the Net Asset Sale Proceeds from such Asset Sale, and within 360 calendar days thereof (the "Reinvestment Date") apply such Net Cash Proceeds to an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale Proceeds, to invest or in a Permitted Related Investment properties and assets that will be used in the business of Alderwoods and its Restricted Subsidiaries as existing on the Measurement Date or in businesses reasonably related thereto (z) apply any "REPLACEMENT ASSETS"). Any Net Asset Sale Cash Proceeds from any Asset Sale that are not applied pursuant neither used to clause repay, and permanently reduce the commitments under, the Exit Facility or Five-Year Notes or Two-Year Notes (xor with respect to assets of Rose Hills Holding Corp., a Delaware corporation, or any of its Subsidiaries, to repay Indebtedness under the Rose Hills Credit Agreement or the Rose Hills Indenture) or (y) nor invested in Replacement Assets within the 270-day period described above (such amountsexceeding, in the aggregate, $10,000,000 in any fiscal year of Alderwoods constitute "Excess Proceeds") EXCESS PROCEEDS" subject to disposition as provided below. .
(b) When the aggregate amount of Excess Proceeds equals or exceeds (euro)5,000,000$10,000,000, the Company will Alderwoods shall make an offer to purchase (an "Asset Sale OfferASSET SALE OFFER") ratably ), from all Holders of the Notes and all holders of notes of the Company which rank pari passu with the Notes and which notes require an equivalent asset sale offer (the "Other Five-Year Notes"), not more than 60 calendar days thereafter (the "Excess Proceeds Payment Date") that portion 40 Business Days thereafter, an aggregate principal amount of outstanding Five-Year Notes and Other Notes purchasable with equal to such Excess Proceeds, at a price in cash equal to 100% of the outstanding principal amount thereof plus accrued and unpaid interest, if any, thereon to the Excess Proceeds Payment purchase date (the "ASSET SALE OFFER PRICE").
(c) Notice of an Asset Sale Offer shall be mailed by Alderwoods to all Holders of Five-Year Notes not less than 20 Business Days nor more than 40 Business Days before the date on which Alderwoods intends to consummate the Asset Sale Offer ("ASSET SALE PURCHASE DATE") at their last registered address with a copy to the Trustee and the Paying Agent. The Asset Sale Offer shall remain open from the time of mailing for at least 20 Business Days and until at least 5:00 p.m., New York City time, three Business Days prior to the Asset Sale Purchase Date. To The notice, which shall govern the extent terms of the Asset Sale Offer, shall include such disclosures as are required by law and shall state:
(i) that the Asset Sale Offer is not fully subscribed, being made pursuant to this Section 4.12;
(ii) the Company may use Asset Sale Offer Price (including the unutilized portion amount of such Excess Proceeds for general corporate purposes. If the aggregate principal amount, plus accrued and unpaid interest, if any) for each Five-Year Note, thereon the Asset Sale Purchase Date and the date on which the Asset Sale Offer expires;
(iii) that any Five-Year Note not tendered or accepted for payment will continue to accrue interest in accordance with the terms thereof;
(iv) that, unless Alderwoods defaults in the payment of the Asset Sale Offer Price, any Five-Year Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Asset Sale Purchase Date;
(v) that Holders electing to have Five-Year Notes validly tendered purchased pursuant to an Asset Sale Offer must surrender their Five-Year Notes to the Paying Agent at the address specified in the notice prior to 5:00 p.m., New York City time, three Business Days prior to the Asset Sale Purchase Date and must complete any form of letter of transmittal proposed by Alderwoods and reasonably acceptable to the Trustee and the Paying Agent;
(vi) that Holders will be entitled to withdraw their election if the Paying Agent receives, not withdrawn by Holders thereof exceeds later than 5:00 p.m., New York City time, one Business Day prior to the Asset Sale Purchase Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of Five-Year Notes the Holder delivered for purchase, the Five-Year Note certificate number (if any) and a statement that such Holder is withdrawing its election to have such Five-Year Notes purchased;
(vii) that if Five-Year Notes in a principal amount in excess of the Holder's pro rata share of the amount of Excess Proceeds available are tendered pursuant to the Asset Sale Offer, Alderwoods shall purchase such Notes, Five-Year Notes to be purchased will be selected by the Trustee on a pro rata basis based upon amounts among the Five-Year Notes tendered (with such adjustments as may be deemed appropriate by the Company Alderwoods so that only Five-Year Notes in denominations of (euro)1,000, $100 or integral multiples thereof, of $100 shall be purchasedacquired);
(viii) that Holders whose Five-Year Notes are purchased only in part will be issued new Five-Year Notes equal in principal amount to the unpurchased portion of the Five-Year Notes surrendered;
(ix) the instructions that Holders must follow in order to tender their Five-Year Notes; and
(x) such other information concerning Alderwoods and the Asset Sale Offer as Alderwoods reasonably determines is appropriate. Alderwoods shall comply with the requirements under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with any Asset Sales and Asset Sale Offers.
(d) On the Asset Sale Purchase Date, Alderwoods shall (i) accept for payment, on a pro rata basis, Five-Year Notes or portions thereof tendered pursuant to the Asset Sale Offer, (ii) deposit with the Paying Agent money, in immediately available funds, in an amount sufficient to pay the Asset Sale Offer Price of all Five-Year Notes or portions thereof so tendered and accepted and (iii) deliver to the Trustee the Five-Year Notes so accepted together with an Officers' Certificate setting forth the Five-Year Notes or portions thereof tendered to and accepted for payment by Alderwoods. The Paying Agent shall promptly mail or deliver to Holders of Five-Year Notes so accepted payment in an amount equal to the Asset Sale Offer Price, and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Five-Year Note equal in principal amount to any unpurchased portion of the Five-Year Note surrendered. Any Five-Year Notes not so accepted shall be promptly mailed or delivered by Alderwoods to the Holder thereof.
(e) Alderwoods will publicly announce the results of the Asset Sale Offer not later than the second Business Day following the Asset Sale Purchase Date. To the extent that the aggregate principal amount of Five-Year Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, Alderwoods may use such deficiency for general corporate purposes. Upon completion of such Asset Sale Offer, the amount of Excess Proceeds will shall be reset to zero. In For purposes of this Section 4.12, the event Trustee shall act as Paying Agent.
(f) Alderwoods will comply, to the extent applicable, with the requirements of the transfer of substantially all (but not allSection 14(e) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 hereof, the Surviving Entity shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of the second paragraph of this Section 4.08, and will comply with the Asset Sale provisions of this Indenture with respect to such deemed sale as if it were an Asset Sale. In addition, the Fair Market Value of such properties and assets of the Company or its Subsidiaries deemed to be sold pursuant to this paragraph will be deemed to be Net Asset Sale Proceeds for purposes of the Asset Sale provisions of this Indenture. If an offer is made to repurchase the Notes in an Asset Sale Offer, the Company will comply with any tender offer rules under the Exchange Act, including, but not limited to, Rule 14e-1 thereunder, Act and any other applicable laws, rules and securities laws or regulations in connection with any such offer. To the extent that repurchase of Five-Year Notes pursuant to the provisions of any United States federal or state securities laws and regulations conflict with this Section 4.08, the Company shall comply with the applicable United States federal or state securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.08 by virtue thereof. If the Company is required to make an Asset Sale Offer, the Company or, at the Company's request, the Trustee in the Company's name and at the Company's sole expense, shall mail, not less than 30 calendar days nor more than 60 calendar days preceding the Excess Proceeds Payment Date, a notice to the Holders with, if mailed by the Company, a copy to the Trustee stating, among other things: (1) that such Holders have the right to require the Company to apply the available Excess Proceeds to repurchase such Notes at a purchase price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the Excess Proceeds Payment Date;.
Appears in 1 contract
Sources: Indenture (Alderwoods Group Inc)
Disposition of Proceeds of Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate make any Asset Sale during any period when the Securities are not rated Investment Grade by S&P and Mood▇'▇ (▇▇ if either S&P or Mood▇'▇ ▇▇▇s not make a rating of the Securities publicly available, by either S&P or Mood▇'▇ ▇▇▇ an equivalent rating by another Rating Agency (such period, the "Non-Investment Grade Period")) unless (ia) the Company or such Restricted Subsidiary, as the case may be, receives consideration received in respect at the time of such Asset Sale is at least equal to the Fair Market Value of the shares or assets sold or otherwise disposed of and (b) at least 75% of such consideration consists of cash or Cash Equivalents. To the extent the Net Cash Proceeds of any Asset Sale consummated during the Non-Investment Grade Period are not required (a) to repay any Indebtedness secured by the assets subject to such Asset Sale pursuant to Liens permitted under this Indenture, (b) to repay Indebtedness incurred pursuant to clause (j) of Section 4.04, (c) to be applied to repay, and permanently reduce the commitments under, the Credit Agreement (iias required by the terms thereof) at least 75% of or (d) to repay Indebtedness under the value of the consideration therefrom received by 1995 Notes or, in each case, are not so applied, the Company or such Subsidiary is in the form of (A) cash or Cash Equivalents, (B) assets to be owned by and used in the business of the Company or any of its Subsidiaries or (C) the assumption by the Person acquiring the assets in such Asset Sale of Indebtedness of the Company or any of its Subsidiaries with the effect that none of the Company or any of its Subsidiaries will have any obligation with respect to such Indebtedness. The Company or the applicable Restricted Subsidiary, as the case may be, will either (x) may, within 270 calendar days apply the Net Asset Sale Proceeds from such Asset Sale to permanently repay Indebtedness under a Bank Credit Agreement, including a permanent reduction in any related loan commitment thereunder, and, to the extent required, to tender for and repurchase any Existing Notes or (y) commit within 270 calendar 365 days of such Asset Sale to apply the Net Asset Sale Proceeds from such Asset Sale, and within 360 calendar days thereof (the "Reinvestment Date") apply such Net Cash Proceeds to an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale Proceeds, to invest or in a Permitted Related Investment properties and assets that will be used in the businesses of the Company and its Restricted Subsidiaries existing on the Issue Date or in businesses reasonably related thereto (z) apply any "Replacement Assets"). Any Net Asset Sale Cash Proceeds from any Asset Sale consummated during the Non-Investment Grade Period that are not applied pursuant neither used to clause (x) or (y) repay Indebtedness, as specified in the immediately preceding sentence, nor invested in Replacement Assets within the 365-day period described above (such amounts, constitute "Excess Proceeds") ," subject to disposition as provided below. below in clause (b) of this Section 4.16.
(b) When the aggregate amount of Excess Proceeds equals or exceeds (euro)5,000,000$10,000,000, the Company will shall make an offer to purchase (an "Asset Sale Offer") ratably ), from all Holders of the Notes and all holders of notes of the Company which rank pari passu with the Notes and which notes require an equivalent asset sale offer (the "Other Notes")Securities, not more than 60 calendar days 40 Business Days thereafter (the "Excess Proceeds Payment Date") that portion ), an aggregate principal amount of outstanding Notes and Other Notes purchasable with Securities equal to such Excess Proceeds, at a price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, thereon to the Excess Proceeds Payment Date. To the extent that the Asset Sale Offer is not fully subscribed, the Company may use the unutilized portion of such Excess Proceeds for general corporate purposes. If the aggregate principal amount, plus accrued and unpaid interest, if any, thereon of Notes validly tendered and not withdrawn by Holders thereof exceeds the Excess Proceeds available to purchase such Notes, Notes to be purchased will be selected by the Trustee on a pro rata basis based upon amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of (euro)1,000, or integral multiples thereof, shall be purchased). Upon completion of such Asset Sale Offer, the amount of Excess Proceeds will be reset to zero. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 hereof, the Surviving Entity shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of the second paragraph of this Section 4.08, and will comply with the Asset Sale provisions of this Indenture with respect to such deemed sale as if it were an Asset Sale. In addition, the Fair Market Value of such properties and assets of the Company or its Subsidiaries deemed to be sold pursuant to this paragraph will be deemed to be Net Asset Sale Proceeds for purposes of the Asset Sale provisions of this Indenture. If an offer is made to repurchase the Notes in an Asset Sale Offer, the Company will comply with any tender offer rules under the Exchange Act, including, but not limited to, Rule 14e-1 thereunder, and any other applicable laws, rules and regulations in connection with any such offer. To the extent that the provisions of any United States federal or state securities laws and regulations conflict with this Section 4.08, the Company shall comply with the applicable United States federal or state securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.08 by virtue thereof. If the Company is required to make an Asset Sale Offer, the Company or, at the Company's request, the Trustee in the Company's name and at the Company's sole expense, shall mail, not less than 30 calendar days nor more than 60 calendar days preceding the Excess Proceeds Payment Date, a notice to the Holders with, if mailed by the Company, a copy to the Trustee stating, among other things: (1) that such Holders have the right to require the Company to apply the available Excess Proceeds to repurchase such Notes at a purchase price in cash equal to 100% of the outstanding principal amount thereof plus accrued and unpaid interest, if any, to the Excess Proceeds Payment Date;. To the extent that the aggregate principal amount of Securities tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company may use such deficiency for general corporate purposes. If the aggregate principal amount of Securities validly tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, Securi-
Appears in 1 contract
Sources: Indenture (Walbro Corp)
Disposition of Proceeds of Asset Sales. The Company (a) LGII will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate make any Asset Sale unless (i) LGII or such Restricted Subsidiary, as the case may be, receives consideration received in respect at the time of such Asset Sale is at least equal to the Fair Market Value of the shares or assets subject to such Asset Sale sold or otherwise disposed of and (ii) except with respect to assets listed on Schedule 4.12 hereto, at least 75% of the value such consideration consists of the consideration therefrom received by the Company or such Subsidiary is in the form of (A) cash or Cash Equivalents, (B) assets . To the extent the Net Cash Proceeds of any Asset Sale are not required to be owned by applied to repay, and used in permanently reduce the business of commitments under, the Company or any of its Subsidiaries or Exit Facility (C) the assumption as required by the Person acquiring the assets in terms thereof) or are applied to payment of Two-Year Notes, Five-Year Notes or Seven-Year Notes, LGII or such Asset Sale of Indebtedness of the Company or any of its Subsidiaries with the effect that none of the Company or any of its Subsidiaries will have any obligation with respect to such Indebtedness. The Company or the applicable Restricted Subsidiary, as the case may be, will either (x) may, within 270 calendar days apply the Net Asset Sale Proceeds from such Asset Sale to permanently repay Indebtedness under a Bank Credit Agreement, including a permanent reduction in any related loan commitment thereunder, and, to the extent required, to tender for and repurchase any Existing Notes or (y) commit within 270 calendar days of such Asset Sale to apply the Net Asset Sale Proceeds from such Asset Sale, and within 360 calendar days thereof (the "Reinvestment Date") apply such Net Cash Proceeds to an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale Proceeds, to invest or in a Permitted Related Investment properties and assets that will be used in the business of LGII and its Restricted Subsidiaries as existing on the Measurement Date or in businesses reasonably related thereto (z) apply any "REPLACEMENT ASSETS"). Any Net Asset Sale Cash Proceeds from any Asset Sale that are not applied pursuant neither used to clause (x) repay, and permanently reduce the commitments under, the Exit Facility or (y) Two-Year Notes, Five-Year Notes or Seven-Year Notes nor invested in Replacement Assets within the 270-day period described above (such amountsexceeding, in the aggregate, $10,000,000 in any fiscal year of LGII constitute "Excess Proceeds") EXCESS PROCEEDS" subject to disposition as provided below. When the aggregate amount of Excess Proceeds equals or exceeds (euro)5,000,000, the Company will make an offer to purchase (an "Asset Sale Offer") ratably from all Holders of the Notes and all holders of notes of the Company which rank pari passu with the Notes and which notes require an equivalent asset sale offer (the "Other Notes"), not more than 60 calendar days thereafter (the "Excess Proceeds Payment Date") that portion of outstanding Notes and Other Notes purchasable with such Excess Proceeds, at a price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, thereon to the Excess Proceeds Payment Date. To the extent that the Asset Sale Offer is not fully subscribed, the Company may use the unutilized portion of such Excess Proceeds for general corporate purposes. If the aggregate principal amount, plus accrued and unpaid interest, if any, thereon of Notes validly tendered and not withdrawn by Holders thereof exceeds the Excess Proceeds available to purchase such Notes, Notes to be purchased will be selected by the Trustee on a pro rata basis based upon amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of (euro)1,000, or integral multiples thereof, shall be purchased). Upon completion of such Asset Sale Offer, the amount of Excess Proceeds will be reset to zero. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 hereof, the Surviving Entity shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of the second paragraph of this Section 4.08, and will comply with the Asset Sale provisions of this Indenture with respect to such deemed sale as if it were an Asset Sale. In addition, the Fair Market Value of such properties and assets of the Company or its Subsidiaries deemed to be sold pursuant to this paragraph will be deemed to be Net Asset Sale Proceeds for purposes of the Asset Sale provisions of this Indenture. If an offer is made to repurchase the Notes in an Asset Sale Offer, the Company will comply with any tender offer rules under the Exchange Act, including, but not limited to, Rule 14e-1 thereunder, and any other applicable laws, rules and regulations in connection with any such offer. To the extent that the provisions of any United States federal or state securities laws and regulations conflict with this Section 4.08, the Company shall comply with the applicable United States federal or state securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.08 by virtue thereof. If the Company is required to make an Asset Sale Offer, the Company or, at the Company's request, the Trustee in the Company's name and at the Company's sole expense, shall mail, not less than 30 calendar days nor more than 60 calendar days preceding the Excess Proceeds Payment Date, a notice to the Holders with, if mailed by the Company, a copy to the Trustee stating, among other things: (1) that such Holders have the right to require the Company to apply the available Excess Proceeds to repurchase such Notes at a purchase price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the Excess Proceeds Payment Date;.
Appears in 1 contract
Disposition of Proceeds of Asset Sales. The Company (a) Alderwoods will not, and will not permit any of its Restricted Subsidiaries (other than Rose Hills Holdings Corp., a Delaware corporation, or any Subsidiary thereof) to, directly or indirectly, consummate make any Asset Sale unless (i) Alderwoods or such Restricted Subsidiary, as the case may be, receives consideration received in respect at the time of such Asset Sale is at least equal to the Fair Market Value of the shares or assets subject to such Asset Sale sold or otherwise disposed of and (ii) except with respect to assets listed on Schedule 4.12 hereto, at least 75% of the value such consideration consists of the consideration therefrom received by the Company or such Subsidiary is in the form of (A) cash or Cash Equivalents, (B) assets . To the extent the Net Cash Proceeds of any Asset Sale are not required to be owned applied to repay, and permanently reduce the commitments under, the Exit Facility (as required by and used in the business terms thereof) or are applied to payment of the Company Two-Year Notes or Five-Year Notes (or with respect to assets of Rose Hills Holding Corp., a Delaware corporation, or any of its Subsidiaries or (C) Subsidiaries, to repay Indebtedness under the assumption by the Person acquiring the assets in such Asset Sale of Indebtedness of the Company or any of its Subsidiaries with the effect that none of the Company or any of its Subsidiaries will have any obligation with respect to such Indebtedness. The Company Rose Hills Credit Agreement or the applicable Rose Hills Indenture), Alderwoods or such Restricted Subsidiary, as the case may be, will either (x) may, within 270 calendar days apply the Net Asset Sale Proceeds from such Asset Sale to permanently repay Indebtedness under a Bank Credit Agreement, including a permanent reduction in any related loan commitment thereunder, and, to the extent required, to tender for and repurchase any Existing Notes or (y) commit within 270 calendar days of such Asset Sale to apply the Net Asset Sale Proceeds from such Asset Sale, and within 360 calendar days thereof (the "Reinvestment Date") apply such Net Cash Proceeds to an investment in properties and assets that replace the properties and assets that were the subject of such Asset Sale Proceeds, to invest or in a Permitted Related Investment properties and assets that will be used in the business of Alderwoods and its Restricted Subsidiaries as existing on the Measurement Date or in businesses reasonably related thereto (z) apply any "REPLACEMENT ASSETS"). Any Net Asset Sale Cash Proceeds from any Asset Sale that are not applied pursuant neither used to clause repay, and permanently reduce the commitments under, the Exit Facility or Five-Year Notes or Two-Year Notes (xor with respect to assets of Rose Hills Holding Corp., a Delaware corporation, or any of its Subsidiaries, to repay Indebtedness under the Rose Hills Credit Agreement or the Rose Hills Indenture) or (y) nor invested in Replacement Assets within the 270-day period described above (such amountsexceeding, in the aggregate, $10,000,000 in any fiscal year of Alderwoods constitute "Excess Proceeds") EXCESS PROCEEDS" subject to disposition as provided below. .
(b) When the aggregate amount of Excess Proceeds equals or exceeds (euro)5,000,000$10,000,000, the Company will Alderwoods shall make an offer to purchase (an "Asset Sale OfferASSET SALE OFFER") ratably ), from all Holders of the Notes and all holders of notes of the Company which rank pari passu with the Notes and which notes require an equivalent asset sale offer (the "Other Five-Year Notes"), not more than 60 calendar days thereafter (the "Excess Proceeds Payment Date") that portion 40 Business Days thereafter, an aggregate principal amount of outstanding Five-Year Notes and Other Notes purchasable with equal to such Excess Proceeds, at a price in cash equal to 100% of the outstanding principal amount thereof plus accrued and unpaid interest, if any, thereon to the Excess Proceeds Payment purchase date (the "ASSET SALE OFFER PRICE").
(c) Notice of an Asset Sale Offer shall be mailed by Alderwoods to all Holders of Five-Year Notes not less than 20 Business Days nor more than 40 Business Days before the date on which Alderwoods intends to consummate the Asset Sale Offer ("ASSET SALE PURCHASE DATE") at their last registered address with a copy to the Trustee and the Paying Agent. The Asset Sale Offer shall remain open from the time of mailing for at least 20 Business Days and until at least 5:00 p.m., New York City time, three Business Days prior to the Asset Sale Purchase Date. To The notice, which shall govern the extent terms of the Asset Sale Offer, shall include such disclosures as are required by law and shall state:
(i) that the Asset Sale Offer is not fully subscribed, being made pursuant to this Section 4.12;
(ii) the Company may use Asset Sale Offer Price (including the unutilized portion amount of such Excess Proceeds for general corporate purposes. If the aggregate principal amount, plus accrued and unpaid interest, if any) for each Five-Year Note, thereon the Asset Sale Purchase Date and the date on which the Asset Sale Offer expires;
(iii) that any Five-Year Note not tendered or accepted for payment will continue to accrue interest in accordance with the terms thereof;
(iv) that, unless Alderwoods defaults in the payment of the Asset Sale Offer Price, any Five-Year Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Asset Sale Purchase Date;
(v) that Holders electing to have Five-Year Notes validly tendered purchased pursuant to an Asset Sale Offer must surrender their Five-Year Notes to the Paying Agent at the address specified in the notice prior to 5:00 p.m., New York City time, three Business Days prior to the Asset Sale Purchase Date and must complete any form of letter of transmittal proposed by Alderwoods and reasonably acceptable to the Trustee and the Paying Age▇▇;
(vi) that Holders will be entitled to withdraw their election if the Paying Agent receives, not withdrawn by Holders thereof exceeds later than 5:00 p.m., New York City time, one Business Day prior to the Asset Sale Purchase Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of Five-Year Notes the Holder delivered for purchase, the Five-Year Note certificate number (if any) and a statement that such Holder is withdrawing its election to have such Five-Year Notes purchased;
(vii) that if Five-Year Notes in a principal amount in excess of the Holder's pro rata share of the amount of Excess Proceeds available are tendered pursuant to the Asset Sale Offer, Alderwoods shall purchase such Notes, Five-Year Notes to be purchased will be selected by the Trustee on a pro rata basis based upon amounts among the Five-Year Notes tendered (with such adjustments as may be deemed appropriate by the Company Alderwoods so that only Five-Year Notes in denominations of (euro)1,000, $100 or integral multiples thereof, of $100 shall be purchasedacquired);
(viii) that Holders whose Five-Year Notes are purchased only in part will be issued new Five-Year Notes equal in principal amount to the unpurchased portion of the Five-Year Notes surrendered;
(ix) the instructions that Holders must follow in order to tender their Five-Year Notes; and
(x) such other information concerning Alderwoods and the Asset Sale Offer as Alderwoods reasonably determines is appropriate. Alderwoods shall comply with the requirements under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with any Asset Sales and Asset Sale Offers.
(d) On the Asset Sale Purchase Date, Alderwoods shall (i) accept for payment, on a pro rata basis, Five-Year Notes or portions thereof tendered pursuant to the Asset Sale Offer, (ii) deposit with the Paying Agent money, in immediately available funds, in an amount sufficient to pay the Asset Sale Offer Price of all Five-Year Notes or portions thereof so tendered and accepted and (iii) deliver to the Trustee the Five-Year Notes so accepted together with an Officers' Certificate setting forth the Five-Year Notes or portions thereof tendered to and accepted for payment by Alderwoods. The Paying Agent shall promptly mail or deliver to Holders of Five-Year Notes so accepted payment in an amount equal to the Asset Sale Offer Price, and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Five-Year Note equal in principal amount to any unpurchased portion of the Five-Year Note surrendered. Any Five-Year Notes not so accepted shall be promptly mailed or delivered by Alderwoods to the Holder thereof.
(e) Alderwoods ▇▇▇▇ ▇▇▇▇▇cly announce the results of the Asset Sale Offer not later than the second Business Day following the Asset Sale Purchase Date. To the extent that the aggregate principal amount of Five-Year Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, Alderwoods may use such deficiency for general corporate purposes. Upon completion of such Asset Sale Offer, the amount of Excess Proceeds will shall be reset to zero. In For purposes of this Section 4.12, the event Trustee shall act as Paying Agent.
(f) Alderwoods will comply, to the extent applicable, with the requirements of the transfer of substantially all (but not allSection 14(e) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 hereof, the Surviving Entity shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of the second paragraph of this Section 4.08, and will comply with the Asset Sale provisions of this Indenture with respect to such deemed sale as if it were an Asset Sale. In addition, the Fair Market Value of such properties and assets of the Company or its Subsidiaries deemed to be sold pursuant to this paragraph will be deemed to be Net Asset Sale Proceeds for purposes of the Asset Sale provisions of this Indenture. If an offer is made to repurchase the Notes in an Asset Sale Offer, the Company will comply with any tender offer rules under the Exchange Act, including, but not limited to, Rule 14e-1 thereunder, Act and any other applicable laws, rules and securities laws or regulations in connection with any such offer. To the extent that repurchase of Five-Year Notes pursuant to the provisions of any United States federal or state securities laws and regulations conflict with this Section 4.08, the Company shall comply with the applicable United States federal or state securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.08 by virtue thereof. If the Company is required to make an Asset Sale Offer, the Company or, at the Company's request, the Trustee in the Company's name and at the Company's sole expense, shall mail, not less than 30 calendar days nor more than 60 calendar days preceding the Excess Proceeds Payment Date, a notice to the Holders with, if mailed by the Company, a copy to the Trustee stating, among other things: (1) that such Holders have the right to require the Company to apply the available Excess Proceeds to repurchase such Notes at a purchase price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the Excess Proceeds Payment Date;.
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Disposition of Proceeds of Asset Sales. (a) The Company will shall not, and will shall not permit any of its Subsidiaries Restricted Subsidiary to, directly or indirectly, consummate any Asset Sale Sale, unless (ia) the consideration received in respect of by the Company or such Asset Sale Restricted Subsidiary is at least equal to the Fair Market Value fair market value of the assets subject to such Asset Sale sold or disposed of and (iib) at least 7585% of the value consideration received consists of the consideration therefrom cash or Temporary Cash Investments, PROVIDED that any notes or other obligations received by the Company or any such Restricted Subsidiary is as consideration that are converted by the Company or such Restricted Subsidiary into cash within 30 days of their receipt (to the extent of the cash received), shall be deemed to be cash for purposes of this provision. In the event and to the extent that the Net Cash Proceeds received by the Company or its Restricted Subsidiaries from one or more Asset Sales occurring on or after the Issue Date in any period of 12 consecutive months exceed 10% of Adjusted Consolidated Net Tangible Assets (determined as of the form date closest to the commencement of such 12-month period for which a consolidated balance sheet of the Company and its Restricted Subsidiaries has been prepared), then the Company shall, or shall cause the relevant Restricted Subsidiary to, (i) within six months after the date Net Cash Proceeds so received exceed 10% of Adjusted Consolidated Net Tangible Assets (A) cash or apply an amount equal to such excess Net Cash Equivalents, (B) assets Proceeds to be owned by and used in the business of the Company or any of its Subsidiaries or (C) the assumption by the Person acquiring the assets in such Asset Sale of permanently repay unsubordinated Indebtedness of the Company or any of its Restricted Subsidiaries with the effect that none of owing to a Person other than the Company or any of its Restricted Subsidiaries will have any obligation with respect to such Indebtedness. The Company or (B) invest an equal amount, or the applicable Subsidiaryamount not so applied pursuant to clause (A) (or enter into a definitive agreement committing to so invest within six months after the date of such agreement), in property or assets of a nature or type or that are used in a business (or in a company having property and assets of a nature or type, or engaged in a business) similar or related to the nature or type of the property and assets of, or the business of, the Company and its Restricted Subsidiaries existing on the date of such Investment (as determined in good faith by the case may beBoard, will either whose determination shall be conclusive and evidenced by a resolution of the Board and (xii) within 270 calendar days apply (no later than the end of the six-month period referred to in clause (i)) such excess Net Asset Sale Cash Proceeds from such Asset Sale to permanently repay Indebtedness under a Bank Credit Agreement, including a permanent reduction in any related loan commitment thereunder, and, (to the extent required, to tender for and repurchase any Existing Notes or (y) commit within 270 calendar days of such Asset Sale to apply the Net Asset Sale Proceeds from such Asset Sale, and within 360 calendar days thereof (the "Reinvestment Date") apply such Net Asset Sale Proceeds, to invest in a Permitted Related Investment or (z) apply any Net Asset Sale Proceeds from any Asset Sale that are not applied pursuant to clause (x) or (y) above (such amounts, "Excess Proceeds"i)) as provided belowin the following paragraph of this Section 4.11. When The amount of such excess Net Cash Proceeds required to be applied (or to be committed to be applied) during such six-month period as set forth in clause (i) of the preceding sentence and not applied as so required by the end of such period shall constitute "EXCESS PROCEEDS."
(b) If, as of the first day of any calendar month, the aggregate amount of Excess Proceeds equals or exceeds (euro)5,000,000not theretofore subject to an Offer to Purchase pursuant to this Section 4.11 totals at least $5.0 million, the Company will make an offer to purchase (an "Asset Sale Offer") ratably from all Holders shall commence, not later than the fifteenth business day of the succeeding month, and consummate an Offer to Purchase from the holders on a PRO RATA basis an aggregate principal amount of Notes and all holders of notes of equal to the Company which rank pari passu with the Notes and which notes require an equivalent asset sale offer (the "Other Notes"), not more than 60 calendar days thereafter (the "Excess Proceeds Payment Date") that portion of outstanding Notes and Other Notes purchasable with on such Excess Proceedsdate, at a purchase price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, thereon to the Excess Proceeds Payment Date. To the extent that the Asset Sale Offer is not fully subscribed, the Company may use the unutilized portion of such Excess Proceeds for general corporate purposes. If the aggregate principal amount, plus accrued and unpaid interest, if any, thereon of Notes validly tendered and not withdrawn by Holders thereof exceeds the Excess Proceeds available to purchase such Notes, Notes to be purchased will be selected by the Trustee on a pro rata basis based upon amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of (euro)1,000, or integral multiples thereof, shall be purchased). Upon completion of such Asset Sale Offer, the amount of Excess Proceeds will be reset to zero. In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Subsidiaries as an entirety to a Person in a transaction permitted under Section 5.01 hereof, the Surviving Entity shall be deemed to have sold the properties and assets of the Company and its Subsidiaries not so transferred for purposes of the second paragraph of this Section 4.08, and will comply with the Asset Sale provisions of this Indenture with respect to such deemed sale as if it were an Asset Sale. In addition, the Fair Market Value of such properties and assets of the Company or its Subsidiaries deemed to be sold pursuant to this paragraph will be deemed to be Net Asset Sale Proceeds for purposes of the Asset Sale provisions of this Indenture. If an offer is made to repurchase the Notes in an Asset Sale Offer, the Company will comply with any tender offer rules under the Exchange Act, including, but not limited to, Rule 14e-1 thereunder, and any other applicable laws, rules and regulations in connection with any such offer. To the extent that the provisions of any United States federal or state securities laws and regulations conflict with this Section 4.08, the Company shall comply with the applicable United States federal or state securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.08 by virtue thereof. If the Company is required to make an Asset Sale Offer, the Company or, at the Company's request, the Trustee in the Company's name and at the Company's sole expense, shall mail, not less than 30 calendar days nor more than 60 calendar days preceding the Excess Proceeds Payment Date, a notice to the Holders with, if mailed by the Company, a copy to the Trustee stating, among other things: (1) that such Holders have the right to require the Company to apply the available Excess Proceeds to repurchase such Notes at a purchase price in cash equal to 100% of the principal amount thereof plus accrued and unpaid interest, if any, to the Excess Proceeds Payment Date;date of purchase.
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