Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not and shall not permit any of their respective Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their property, business or assets, including by merger or consolidation (in the case of a Subsidiary or Unrestricted Subsidiary), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiary, whether by the Company or the Parent or one of their respective Subsidiaries or through the issuance, sale or transfer of Equity Interests by one of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless: (1) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold; (2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and (3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale. (b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be: (1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or (2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture. (c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period"). (d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero. (e) Notwithstanding, and without complying with, the other provisions of this Section 4.13: (1) the Company or the Parent may and their respective Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents; (2) the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1; (3) the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable; (4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors; (5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million; (6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and (7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. 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 Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date.
Appears in 2 contracts
Sources: Indenture (RFS Partnership Lp), Indenture (RFS Hotel Investors Inc)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not will not, and shall will not permit any of their respective its Subsidiaries to, engage in one or a series of related transactionsan Asset Sale, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their property, business or assets, including by merger or consolidation unless (in the case of a Subsidiary or Unrestricted Subsidiary), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiary, whether by i) the Company or such Subsidiary, as the Parent or one case may be, receives consideration at the time of their respective Subsidiaries or through such Asset Sale at least equal to the issuanceFair Market Value (which, sale or transfer if it exceeds $1,000,000, shall be determined by the Board of Equity Interests by one Directors and set forth in a Board Resolution delivered to the Holders) of the Company's Subsidiaries assets (including, if appropriate, Equity Interests) disposed of or Unrestricted Subsidiary issued, as appropriate, and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
(1ii) at least 75% of the total consideration for therefor received by the Company or such Asset Sale or series of related Asset Sales consists Subsidiary is in the form of cash or Cash Equivalents; provided, however, that with respect to the sale of one or more hotel properties, up to 75% limitation referred to above shall not apply to any Asset Sale in which the cash portion of the consideration may consist received 18 123 therefor, determined in accordance with the following sentence, is equal to or greater than what the after-tax net proceeds would have been had such transaction complied with the aforementioned 75% limitation. For purposes of Indebtedness this covenant (and not for purposes of any other provision of this Note), the term "cash" shall be deemed to include (A) any notes or other obligations received by the Company or such Subsidiary as consideration as part of such Asset Sale that are immediately converted by the Company or such Subsidiary into actual cash or Cash Equivalents (to the extent of the purchaser actual cash or Cash Equivalents so received), and (B) any liabilities of the Company or such Subsidiary (as shown on the most recent balance sheet of the Company or such Subsidiary) that are payable in cash and that (1) are assumed by the transferee of the assets which are the subject of such hotel properties so long Asset Sale as consideration therefor in a transaction the result of which is that the Company and all of its Subsidiaries are released from all liability for such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
assumed liability, (2) no Default or Event are not by their terms subordinated in right of Default shall have occurred and be continuing at payment to the time ofNotes, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, are not owed to the Company or their respective Subsidiariesany Subsidiary of the Company, and (4) constitute short-term liabilities (as applicable, equals the fair market value for such Asset Saledetermined in accordance with GAAP).
(b) In Within 360 days after the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds receipt of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such Proceeds from an Asset Sale, the Company may apply, directly or indirectly, such Net Cash Proceeds therefrom (i) to repay permanently Senior Indebtedness of the "Asset Sale Amount"Company or of its Subsidiaries, or (ii) shall be:
(1) invested in assets and property (except in connection with to the making of a capital expenditure or the acquisition of a Subsidiary which is a Guarantor other long-term assets, in each case, in a Related Business. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10,000,000, other than notes, bonds, obligation and securitiesthe Company may make an offer to all holders of 10 3/8% Senior Subordinated Notes to the extent required by Section 4.08(b) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereofIndenture. Pending the final application of any such Net Cash Proceeds, the Company or its Subsidiaries, as the Parent case may be, may temporarily reduce revolving credit borrowings Indebtedness under the Senior Credit Facility or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after Note. If the date that aggregate principal amount of the 10 3/8% Senior Subordinated Notes tendered by the holders thereof is less than the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds for general corporate purposes. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset to at zero.
(ec) NotwithstandingThe Company will not, and without complying with, the other provisions will not permit any of this Section 4.13:
(1) the Company or the Parent may and their respective its Subsidiaries may, in the ordinary course of business, (a) convey, sellto, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(2) the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, lease or otherwise dispose of assets any Capital Stock of any of its Subsidiaries to any Person (other than the Company or related assets another Subsidiary of the Company), unless (i) such transfer, conveyance, sale, lease or in related transactions) with a fair market value other disposition is of less than $2 million;
(6) all of the Capital Stock of such Subsidiary owned by the Company and the Parent may and their respective its Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments is otherwise permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above 4.7 and (ii) such transaction is conducted in clauses accordance with Sections 4.2(a) and (b)(1) or (b)(2) of this Section 4.13. 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 Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Dateb).
Appears in 2 contracts
Sources: Securities Purchase Agreement (Kevco Partners Investment Trust), Securities Purchase Agreement (Kevco Inc)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent Issuers shall not and the Subsidiary Guarantors shall not not, and neither the Issuers nor the Subsidiary Guarantors shall permit any of their respective the Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their property, business or assets, including by merger or consolidation (in the case of a Subsidiary or Unrestricted Subsidiarythe Subsidiaries), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiaryof the Subsidiaries, whether by an Issuer or any of the Company or the Parent or one of their respective Subsidiaries or through the issuance, sale or transfer of Equity Interests by one of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and leaseback transaction (any of the foregoing, an "“Asset Sale"”), unless:
(1) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;and
(2) no Default such Issuer or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective SubsidiariesSubsidiary receives, as applicable, equals the fair market value for such Asset Sale, which fair market determination shall be made by a resolution of the Board of Directors if the value of such Asset Sale is more than $2.5 million. For purposes of clause (1) above, total consideration received means the total consideration received for such Asset Sales, minus the amount of (a) Purchase Money Indebtedness secured solely by the assets sold and assumed by a transferee; provided, that the Issuers are and the Subsidiaries are fully released from all obligations in connection therewith, (b) any of such Issuer’s or such Subsidiary’s liabilities, as shown on such Issuer’s or such Subsidiary’s most recent balance sheet (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 such assets; provided, that the Issuers are and the Subsidiaries are fully released from all obligations in connection therewith, (c) property that within 30 days of such Asset Sale is converted into cash or Cash Equivalents; provided, that such cash and Cash Equivalents shall be treated as Net Cash Proceeds attributable to the original Asset Sale for which such property was received, and (d) the fair market value of property received as consideration for such Asset Sale that would otherwise constitute a permitted application of Net Cash Proceeds (or other cash in such amount) under clause (b)(1)(A) below (such fair market value to be made as provided in clause (2) above).
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within Within 360 days following such Asset SaleSale or the receipt of such Net Cash Proceeds, an amount equal to the Net Cash Proceeds therefrom (the "“Asset Sale Amount"”) shall be:
(1) (A) invested in assets and property Additional Assets or (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, B) used to make Permitted Investments other than notesthose under clauses (a), bonds(b) or (c) under the definition of “Permitted Investments” hereof, obligation and securities) which in the good faith reasonable judgment of the Board of Directors shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, ; or
(2) used to retire (i) Purchase Money Indebtedness incurred secured by the asset which was the subject of the Asset Sale, (ii) Indebtedness outstanding under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b4.7(b)(3) hereofhereof (including that in the case of a revolver or similar arrangement that makes credit available, such commitment is so permanently reduced by such amount), or (iii) other Indebtedness incurred in accordance with Section 4.7 and secured by a Lien permitted under clause (o) of the definition of “Permitted Liens”; provided, that the amount of Indebtedness repaid with such Net Cash Proceeds pursuant to this clause (iii) shall not exceed the value of the assets securing such Indebtedness repaid, or
(3) applied to the optional redemption of the Notes in accordance with the terms of this Indenture and the Issuers’ other Indebtedness ranking on a parity with the Notes and with similar provisions requiring the Issuers to redeem such Indebtedness with the proceeds from such Asset Sale, 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, except that, in the case of each of the provisions of clauses (1) and (2), only proceeds from an Asset Sale of assets or Equity Interests of a Foreign Subsidiary may be invested in or used to retire Indebtedness of a Foreign Subsidiary. Pending the final application of any Net Cash Proceeds, the Company or the Parent Issuers may temporarily reduce revolving credit borrowings or otherwise invest use the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in Sections 4.13(b)(1), (b)(12) or (b)(23) hereof shall constitute "“Excess Proceeds." ”. Within 30 days after the date that the amount of Excess Proceeds exceeds $10 million5,000,000, which date shall not be prior to 390 days after subsequent to the Asset Sale that generated such Excess Proceeds, the Company Issuers shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds (the “Asset Sale Offer Amount”) to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with similar provisions requiring the Company Issuers to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "“Asset Sale Offer"”) at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "“Asset Sale Offer Price"”) together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "“Asset Sale Offer Period"”).
(d) Upon expiration of the Asset Sale Offer Period, the Company Issuers shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if anyinterest). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company Issuers may use any remaining Net Cash Proceeds as in any manner not otherwise permitted prohibited by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) Notwithstanding, and without complying with, the other foregoing provisions of this Section 4.13:
(1) the Company or the Parent Issuers may and their respective the Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(2) the Company Issuers may and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.15.1 hereof;
(3) the Company Issuers may and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out out, or other obsolete personal property in the ordinary course of business so long as such business, which property is no longer necessary for used or useful in the proper conduct of the Company's or the Parent's Issuers’ business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent Issuers may and the Guarantors Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent Issuers or any of the GuarantorsSubsidiary Guarantor;
(5) the Company Issuers may and the Parent may and their respective Subsidiaries may, in the ordinary course any single transaction or series of businessrelated transactions, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million1,000,000;
(6) the Company Issuers may and the Parent may and their respective Subsidiaries may surrender or waive contract rights or settle, release or surrender contract, tort or other litigation claims in the ordinary course of business or grant Liens (and permit foreclosure thereon) not prohibited by this Indenture; and;
(7) the Subsidiaries may issue Equity Interests to the Company or to any Subsidiary Guarantor;
(8) Foreign Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets to any other Foreign Subsidiary; and
(9) the Issuers may and the Parent may and their respective Subsidiaries may make Restricted Payments and Permitted Investments pursuant to clause that are not prohibited by Section 4.9 hereof.
(df) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) ), (2), or (b)(23) of this Section 4.13. above.
(g) 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 Section 4.13, the Company's Issuers’ compliance or the compliance of any of the Company's subsidiaries Subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's Issuers’ obligations under this Section 4.13. .
(h) 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date.
Appears in 2 contracts
Sources: Indenture (Douglas Dynamics, Inc), Indenture (Douglas Dynamics, Inc)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not not, and shall not permit any of their respective its Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their its property, business or assets, including by merger or consolidation (in the case of a Subsidiary Guarantor or Unrestricted Subsidiarya Subsidiary of the Company), and including any sale or other transfer or issuance of any Equity Interests Capital Stock of any SubsidiarySubsidiary of the Company, whether by the Company or the Parent or one a Subsidiary of their respective Subsidiaries either or through the issuance, sale or transfer of Equity Interests Capital Stock by one a Subsidiary of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and leaseback transaction Company (any of the foregoing, an "Asset Sale"), unless:
unless (1i) at least 75% the Board of Directors of the total Company determines in good faith that the Company or such Subsidiary, as applicable, receives consideration for at the time of such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect at least equal to the sale of one or more hotel properties, up to 75% Fair Market Value of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property assets or properties sold;
Capital Stock issued or sold or otherwise disposed of, (2ii) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur as a consequence of (after giving effect, on a pro forma basis, to to) such Asset Sale; and
, and (3iii) the Parent and the Company determine in good faith that at least 75% of the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds therefor received by the Company or such Subsidiary is in the Parent form of Cash or Cash Equivalents; provided that for purposes of this provision the amount of (A) any Indebtedness (other than Securities) that is required to be repaid or assumed (and is either repaid or assumed by the transferee of the related assets) by virtue of such Asset Sale and which is secured by a Lien on the property or assets sold and (B) any securities or other obligations received by the Company or any of their respective Subsidiaries such Subsidiary from such transferee that are immediately converted by the Company or such Subsidiary into Cash (or as to which the Company or such Subsidiary has received at or prior to the consummation of the Asset SaleSale a commitment (which may be subject to customary conditions) from a nationally recognized investment, plus merchant or commercial bank to convert into Cash within 90 days of the consummation of such Asset Sale and which are thereafter actually converted into Cash within such 90-day period) will be deemed to be Cash. Within 365 days after the receipt of any Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such from an Asset Sale, the Company may invest or commit such Net Cash Proceeds, pursuant to a binding commitment subject only to reasonable, customary closing conditions, to be invested (and providing such Net Cash Proceeds therefrom are, in fact, so invested, within an additional 180 days) in (the "Asset Sale Amount"x) shall be:
(1) invested in fixed assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation obligations and securities) which shall in the good faith reasonable judgment of the Board of Directors of the Company will immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2y) used to retire Indebtedness incurred under Permitted Mortgage Investments or (z) a controlling interest in the Credit Agreement and to permanently reduce the amount Capital Stock of an entity engaged in a Related Business; provided, that concurrently with an Investment specified in clause (z), such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereofentity becomes a Subsidiary Guarantor. Pending the final application of any such Net Cash ProceedsProceeds as described above, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated . Any Net Cash Proceeds from Asset Sales that are not applied or invested as set forth provided in the first sentence of this paragraph (b)(1including any Net Cash Proceeds which were committed to be invested as provided in such sentence but which are not in fact invested within the time period provided) or (b)(2) shall will be deemed to constitute "Excess Proceeds." Within 30 days after Notwithstanding the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase foregoing provisions of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) Notwithstanding, and without complying with, the other provisions of this Section 4.13prior paragraph:
(1i) the Company or the Parent may and their respective its Subsidiaries may, in the ordinary course of business, (a) convey, sell, lease, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalentsbusiness;
(2ii) the Company and the Parent may and their respective its Subsidiaries may convey, sell, lease, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1the provisions of Article V;
(3iii) the Company and the Parent may and their respective its Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of the Company or such Subsidiary, as applicable;
(4iv) the Company and the Parent its Subsidiaries may consummate any sale or series of related sales (including, without limitation, sale and the Guarantors may convey, sell, transfer, assign or otherwise dispose leaseback transactions) of assets to or properties of the Company or the Parent or any and its Subsidiaries having a Fair Market Value of the Guarantors;less than $2.0 million; and
(5v) the Company and the Parent its Subsidiaries may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of exchange assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) held by the Company or a Subsidiary for one or more hotels and/or one or more Related Businesses of any person or entity owning one or more hotels and/or one or more Related Businesses; provided, that the Board of Directors of the Company has determined that the terms of any exchange are fair and reasonable and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in Fair Market Value of the ordinary course of business or grant Liens not prohibited assets received by this Indenture; and
(7) the Company and are approximately equal to the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. Any Asset Sale Offer shall be made in compliance with all applicable laws, rules, and regulations, including, if applicable, Regulation 14E Fair Market Value 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 Section 4.13, assets exchanged by the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date.
Appears in 2 contracts
Sources: Indenture (HMH Properties Inc), Indenture (HMH Properties Inc)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not will not, and shall will not permit any of their respective its Subsidiaries to, engage in one or a series of related transactionsan Asset Sale, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their property, business or assets, including by merger or consolidation unless (in the case of a Subsidiary or Unrestricted Subsidiary), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiary, whether by i) the Company or such Subsidiary, as the Parent or one case may be, receives consideration at the time of their respective Subsidiaries or through such Asset Sale at least equal to the issuanceFair Market Value (which, sale or transfer if it exceeds $1,000,000, shall be determined by the Board of Equity Interests by one Directors and set forth in a Board Resolution delivered to the Holders) of the Company's Subsidiaries assets (including, if appropriate, Equity Interests) disposed of or Unrestricted Subsidiary issued, as appropriate, and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
(1ii) at least 75% of the total consideration for therefor received by the Company or such Asset Sale or series of related Asset Sales consists Subsidiary is in the form of cash or Cash Equivalents; provided, however, that with respect to the sale of one or more hotel properties, up to 75% limitation referred to above shall not apply to any Asset Sale in which the cash portion of the consideration may consist received therefor, determined in accordance with the following sentence, is equal to or greater than what the after-tax net proceeds would have been had such transaction complied with the aforementioned 75% limitation. For purposes of Indebtedness this covenant (and not for purposes of any other provision of this Note), the term "cash" shall be deemed to include (A) any notes or other obligations received by the Company or such Subsidiary as consideration as part of such Asset Sale that are immediately converted by the Company or such Subsidiary into actual cash or Cash Equivalents (to the extent of the purchaser actual cash or Cash Equivalents so received), and (B) any liabilities of the Company or such Subsidiary (as shown on the most recent balance sheet of the Company or such Subsidiary) that are payable in cash and that (1) are assumed by the transferee of the assets which are the subject of such hotel properties so long Asset Sale as consideration therefor in a transaction the result of which is that the Company and all of its Subsidiaries are released from all liability for such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
assumed liability, (2) no Default or Event are not by their terms subordinated in right of Default shall have occurred and be continuing at payment to the time ofNotes, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, are not owed to the Company or their respective Subsidiariesany Subsidiary of the Company, and (4) constitute short-term liabilities (as applicable, equals the fair market value for such Asset Saledetermined in accordance with GAAP).
(b) In Within 360 days after the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds receipt of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such Proceeds from an Asset Sale, the Company may apply, directly or indirectly, such Net Cash Proceeds therefrom (i) to repay permanently Senior Indebtedness of the "Asset Sale Amount"Company or of its Subsidiaries, or (ii) shall be:
(1) invested in assets and property (except in connection with to the making of a capital expenditure or the acquisition of a Subsidiary which is a Guarantor other long-term assets, in each case, in a Related Business. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph will be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $10,000,000, other than notes, bonds, obligation and securitiesthe Company may make an offer to all holders of 10 3/8% Senior Subordinated Notes to the extent required by Section 4.08(b) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereofIndenture. Pending the final application of any such Net Cash Proceeds, the Company or its Subsidiaries, as the Parent case may be, may temporarily reduce revolving credit borrowings Indebtedness under the Senior Credit Facility or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after Note. If the date that aggregate principal amount of the 10 3/8% Senior Subordinated Notes tendered by the holders thereof is less than the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds for general corporate purposes. Upon completion of such offer to purchase, the amount of Excess Proceeds shall be reset to at zero.
(ec) NotwithstandingThe Company will not, and without complying with, the other provisions will not permit any of this Section 4.13:
(1) the Company or the Parent may and their respective its Subsidiaries may, in the ordinary course of business, (a) convey, sellto, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(2) the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, lease or otherwise dispose of assets any Capital Stock of any of its Subsidiaries to any Person (other than the Company or related assets another Subsidiary of the Company), unless (i) such transfer, conveyance, sale, lease or in related transactions) with a fair market value other disposition is of less than $2 million;
(6) all of the Capital Stock of such Subsidiary owned by the Company and the Parent may and their respective its Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments is otherwise permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above 4.7 and (ii) such transaction is conducted in clauses accordance with Sections 4.2(a) and (b)(1) or (b)(2) of this Section 4.13. 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 Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Dateb).
Appears in 2 contracts
Sources: Securities Purchase Agreement (Kevco Partners Investment Trust), Securities Purchase Agreement (Kevco Inc)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not not, and shall not permit any of their respective Subsidiaries Restricted Subsidiary to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose ofand each Restricted Entity shall not, directly or indirectly, any of their property, business or assets, including by merger or consolidation (in the case of a Subsidiary or Unrestricted Subsidiary), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiary, whether by the Company or the Parent or one of their respective Subsidiaries or through the issuance, sale or transfer of Equity Interests by one of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
(1) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following consummate any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) Notwithstanding, and without complying with, the other provisions of this Section 4.13Disposition unless:
(1) the Company or such Restricted Entity receives consideration at the Parent may time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and their respective Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalentssubject to such Asset Disposition;
(2) the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct at least 75% of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to consideration thereof received by the Company or such Restricted Entity is in the Parent form of cash, Temporary Cash Investments or Designated Noncash Consideration; provided, however, that the amount of any Designated Noncash Consideration received by the Company or any Restricted Entity in such Asset Disposition having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (2) at the time of determination, shall not exceed an amount equal to the greater of (x) $25 million and (y) 2.5% of Consolidated Total Assets at the time of the Guarantors;
(5) receipt of such Designated Noncash Consideration, with the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; provided further that the amount of:
(6a) any liabilities of the Company and or any Restricted Entity of the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort Issuer (other than Subordinated Obligations) that are assumed by the transferee of any such assets,
(b) any notes or other litigation claims in obligations or other securities or assets received by the ordinary course Company or such Restricted Entity of business the Company from such transferee that are converted by the Company or grant Liens not prohibited by this Indenture; such Restricted Entity of the Company into cash within 180 days of the receipt thereof (to the extent of the cash received), and
(7c) any Indebtedness of a Restricted Entity (other than Subordinated Obligations) that is no longer a Restricted Entity as a result of the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss Asset Disposition shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) deemed to be cash for the purposes of this Section 4.13. 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 Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date.provision;
Appears in 2 contracts
Sources: Indenture (Harbinger Capital Partners Master Fund I, Ltd.), Indenture (Harbinger Capital Partners Master Fund I, Ltd.)
Limitation on Sale of Assets and Subsidiary Stock. (a1) The Company shall not and the Parent shall not, and neither the Company nor Parent shall permit any Subsidiary of the Company or the Parent shall not and shall not permit any of their respective Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their property, business or assets, including by merger or consolidation (in the case of a Subsidiary of the Company or Unrestricted Subsidiarythe Parent), and including any sale or other transfer or issuance of any Equity Interests of any SubsidiarySubsidiary of the Company or of the Parent, whether by the Company Company, the Guarantor, or the Parent or one of their respective Subsidiaries or through the issuance, sale or transfer of Equity Interests by one a Subsidiary of the Company's Subsidiaries Company or Unrestricted Subsidiary Parent and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
(1) with respect to any Asset Sale or related series of Asset Sales involving securities, property or assets with an aggregate fair market value in excess of $ 1,000,000, at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2) no Default the Parent determines in good faith that the Company, the Parent or Event of Default shall have occurred and be continuing at the time ofsuch Subsidiary, or would occur after giving effectas applicable, on a pro forma basisreceives, to as applicable, fair market value for such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the ParentIF THE VALUE OF THE ASSETS BEING DISPOSED OF IN SUCH ASSET SALE OR SERIES OF ASSET SALES WITH AN AGGREGATE FAIR MARKET VALUE (AS DETERMINED IN GOOD FAITH BY THE BOARD OF DIRECTORS) IS AT LEAST $10,000,000, the Company or their respective SubsidiariesTHE BOARD OF DIRECTORS SHALL HAVE RECEIVED A WRITTEN OPINION OF A NATIONALLY RECOGNIZED INVESTMENT BANKING FIRM (OR, as applicableIF PERTAINING TO A MATTER FOR WHICH SUCH INVESTMENT BANKING FIRMS DO NOT CUSTOMARILY RENDER SUCH OPINIONS, equals the fair market value for such Asset SaleAN APPRAISAL OR VALUATION FIRM OF NATIONAL REPUTATION IN THE UNITED STATES) TO THE EFFECT THAT SUCH ASSET SALE OR SERIES OF ASSET SALES IS FAIR, FROM A FINANCIAL POINT OF VIEW, TO THE PARENT OR SUCH SUBSIDIARY AND THE COMPANY SHALL HAVE DELIVERED A COPY OF SUCH OPINION TO THE TRUSTEE PROMPTLY FOLLOWING THE CONSUMMATION OF SUCH ASSET SALE OR SERIES OF ASSET SALES.
(a) Senior Debt assumed by a transferee in an Asset Sale; provided, that the Company and all of the Guarantors and all of the Subsidiaries of the Company and the Parent are fully released from obligations in connection therewith, and (b) In the event and to the extent property that immediately following any within 30 days of such Asset Sale the is converted into cash or Cash Equivalents; provided, that such cash and Cash Equivalents shall be treated as Net Cash Proceeds received by attributable to the Company or the Parent or any of their respective Subsidiaries from original Asset Sale for which such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(sproperty was received.
(2) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within Within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall beare:
(1) invested in assets Related Business Assets and property (except in connection with the acquisition of a Person that becomes a Subsidiary of the Company or the Parent and which is immediately becomes a Guarantor in a Related Business, ) other than notes, bonds, obligation and securities) or make Permitted Investments pursuant to and in accordance with clauses (f) and (g) of the definition thereof which in the good faith reasonable judgment of the Board of Directors of the Company shall immediately constitute or be a part of a Related Business of the Parent, the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and Senior Debt and, to permanently reduce (in the case of Senior Debt that is not such Purchase Money Indebtedness) the amount of such Indebtedness outstanding on the date the Merger is consummated or permitted to be incurred pursuant to paragraph (b) or (c), as applicable, of Section 4.7(b4.7 hereof (including, in the case of a revolver or similar arrangement that makes credit available, permanently reducing the commitment by such amount), or
(3) hereofapplied to the optional redemption of the Notes in accordance with the terms of this Indenture and the Company's other Indebtedness ranking on a parity with the Notes and with similar provisions requiring the Company to redeem such Indebtedness with the proceeds from such Asset Sale, 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, except that, in the case of each of the provisions of clauses (1) and (2), only proceeds from an Asset Sale of assets or capital stock of a Non-Guarantor Foreign Subsidiary may be invested in or used to retire Indebtedness of a Non-Guarantor Subsidiary. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(ca) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in clauses (b)(11), (2) or (b)(23) of Section 4.13(b) above shall constitute "Excess Proceeds." . Within 30 days after the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds15,000,000, the Company shall apply an amount the Excess Proceeds (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with similar provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") ), at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") ), together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for a minimum of 20 Business Days following its commencement (the "Asset Sale Offer Period").
(db) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price Price, (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as in any manner not otherwise permitted prohibited by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) . Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(14) the Company or Company, the Parent may and their respective the Subsidiaries of the Company and the Parent may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(25) the Company, the Parent and the Subsidiaries of the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of all or substantially all of its assets pursuant to and in accordance with Section 5.1Article V hereof;
(36) the Company, the Parent and the Subsidiaries of the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the GuarantorsGuarantor;
(57) the Company, the Parent, and the Subsidiaries of the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender surrender, tort or other litigation claims in the ordinary course of business or grant Liens (and permit foreclosure thereon) not prohibited by this Indenture;
(8) Non-Guarantor Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets to the Company, any of the Guarantors, or any other Non-Guarantor Subsidiary;
(9) the Company, the Parent and the Subsidiaries of the Company and the Parent may make Permitted Investments (pursuant to and in accordance with clauses (f), (g), and (h) in the definition thereof) and Restricted Investments under Section 4.9 hereof;
(10) the Company, the Parent and the Subsidiaries of the Company and the Parent may incur Liens (and the disposition of assets related to such Liens by the secured party pursuant to a foreclosure) that are not prohibited by this Indenture; and
(711) Subsidiaries of the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) issue Equity Interests of such Subsidiary upon conversion of, or in exchange for, other outstanding securities of such Subsidiary the definition thereof and Restricted Investments permitted under Section 4.9issuance of which was not prohibited by this Indenture. All Net Cash Proceeds from an Event of Loss (other than the proceeds of any business interruption insurance) shall be reinvested or used as otherwise provided above in clauses clause (b)(1) or (b)(22) of this Section 4.13. 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 Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date.
Appears in 1 contract
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent Solectron shall not not, and shall not permit any of their respective its Restricted Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their property, business or assets, including by merger or consolidation (in the case of a Subsidiary or Unrestricted Subsidiary), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiary, whether by the Company or the Parent or one of their respective Subsidiaries or through the issuance, sale or transfer of Equity Interests by one of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and leaseback transaction (any of the foregoing, consummate an "Asset Sale"), unless:
(1) Solectron (or a Restricted Subsidiary) receives consideration from the Asset Sale, which, at the time of the Asset Sale, is at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) if such Asset Sale, or any series of related Asset Sales, is for assets with a fair market value in excess of $50,000,000, the fair market value is determined by Solectron’s or Financeco’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
(3) at least 75% of the total consideration for received in the Asset Sale by Solectron or such Restricted Subsidiary consists of cash, Cash Equivalents or Replacement Assets. For purposes of this Section 4.12(a)(3), each of the following will be deemed to be cash:
(A) any liabilities (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes), as shown on Solectron’s most recent Consolidated balance sheet, of Solectron or any Restricted Subsidiary that are assumed by the transferee of any such assets pursuant to an agreement that expressly releases or indemnifies Solectron or such Restricted Subsidiary from further liability;
(B) securities, assets or property that within 90 days of such Asset Sale is converted, sold or series exchanged by Solectron or such Restricted Subsidiary into cash, Cash Equivalents or Replacement Assets; provided that any such cash and Cash Equivalents shall be treated as Net Cash Proceeds attributable to the original Asset Sale for which such property was received; and
(C) Indebtedness of related any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sales consists Sale, if Solectron and all of cash its Restricted Subsidiaries immediately are released from all Guarantees, if applicable, of payments or Cash Equivalents; provided, that other Obligations with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of such Indebtedness of the purchaser of such hotel properties so long as and such Indebtedness is secured by a first priority Lien on no longer the hotel property liability of the Solectron or properties soldany of its Restricted Subsidiaries.
(b) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, Solectron or such Restricted Subsidiary may apply those Net Cash Proceeds:
(1) to permanently repay Indebtedness and other Obligations under the Credit Agreements, any Senior Debt of Solectron or any Indebtedness of any Restricted Subsidiary of Solectron (other than Financeco) or any Senior Debt of Financeco and if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) no Default to acquire all or Event substantially all of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Saleassets of another Permitted Business; andor
(3) to acquire other assets that are immediately used or useful in a Permitted Business, to make capital expenditures or to make Permitted Investments (other than pursuant to clauses (1) or (2) of the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Saledefinition of “Permitted Investments”).
(bc) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent Solectron may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(cd) The accumulated Any Net Cash Proceeds from Asset Sales that are not applied or invested as set forth provided in (b)(1Section 4.12(b) or (b)(2) shall will constitute "“Excess Proceeds." Within 30 days after ” When the date that the aggregate amount of Excess Proceeds exceeds $10 million25,000,000, which date Financeco shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to repurchase (the “Asset Sale Offer”) to all Holders and, at its option, to all holders of other Indebtedness that ranks pari passu in right of payment with the Notes or the related guarantee containing provisions requiring Financeco, Solectron or its Restricted Subsidiaries to offer to purchase or to redeem such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (pro rata in proportion to the respective principal amounts (or accreted values in the case of Indebtedness issued with an original issue discount) sales of the Notes and such other Indebtedness then outstanding) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if anyassets, to purchase the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate maximum principal amount of Notes and such other pari passu Indebtedness tendered pursuant that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount, plus accrued and unpaid interest to, but not including, the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer is less than Offer, Solectron, Financeco or their Restricted Subsidiaries, as applicable, may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer Amountexceeds the amount of Excess Proceeds, the Company may use any remaining Net Cash Proceeds as otherwise permitted Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis or such other basis allowed by this Indenture and following the consummation such other Indebtedness. Upon completion of each Asset Sale Offer Offer, the amount of Excess Proceeds amount shall will be reset to at zero.
(e) Notwithstanding, and without complying with, Financeco shall comply with the other provisions requirements of this Section 4.13:
(1) the Company or the Parent may and their respective Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(2) the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted Rule 14e-1 under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. 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 any other securities laws and regulations thereunder to the extent those laws and all other regulations are applicable Federal and state securities lawsin connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date.this
Appears in 1 contract
Sources: Indenture (Solectron Corp)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not not, and shall not permit any of their respective Subsidiaries Restricted Subsidiary to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose ofand each Restricted Entity shall not, directly or indirectly, consummate any Asset Disposition unless:
(1) the Company or such Restricted Entity receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration thereof received by the Company or such Restricted Entity is in the form of cash, Temporary Cash Investments or Designated Noncash Consideration; provided, however, that the amount of any Designated Noncash Consideration received by the Company or any Restricted Entity in such Asset Disposition having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (2) at the time of determination, shall not exceed an amount equal to the greater of (x) $25 million and (y) 2.5% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; provided further that the amount of:
(a) any liabilities of the Company or any Restricted Entity of the Issuer (other than Subordinated Obligations) that are assumed by the transferee of any such assets,
(b) any notes or other obligations or other securities or assets received by the Company or such Restricted Entity of the Company from such transferee that are converted by the Company or such Restricted Entity of the Company into cash within 180 days of the receipt thereof (to the extent of the cash received), and
(c) any Indebtedness of a Restricted Entity (other than Subordinated Obligations) that is no longer a Restricted Entity as a result of the Asset Disposition shall be deemed to be cash for the purposes of this provision;
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or such Restricted Entity, as the case may be:
(A) first, to the extent the Company or such Restricted Entity elects, to acquire Additional Assets or improve Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that the Company shall have an additional six months to apply such Net Available Cash pursuant to this clause (A) if it shall have entered into a binding acquisition or purchase contract in respect of Additional Assets prior to the expiration of such one-year period; provided further that if the Net Available Cash from any Asset Disposition of an FCC License, Industry Canada License or any similar telecommunications license or any Capital Stock of the FCC License Subsidiary, MSV Canada Inc. or any other entity holding a telecommunications license is in excess of $10.0 million, the Net Available Cash from such Asset Disposition may not be applied as provided in this clause (A) and shall be immediately applied as required in clause (b) below; and
(B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above:
(1) to the extent required by the terms of the 14% Senior Secured Notes or any other secured Indebtedness of either Issuer or any Restricted Entity, make an offer to the holders of the 14% Senior Secured Notes and the holders of such other secured Indebtedness that requires such an offer to purchase, prepay or repay the 14% Senior Secured Notes and such other secured Indebtedness pursuant to the terms thereof; and
(2) to the extent that such Net Available Cash is remaining after application in accordance with Section 4.10(a)(3)(B)(1) above, to make an offer to holders of the Notes (and to holders of other Pari Passu Indebtedness that requires such an offer) to purchase Notes (and such other Pari Passu Indebtedness that require such an offer) pursuant to and subject to the conditions contained in this Indenture; provided, that such offer to holders of Notes is for no less than the Noteholders’ prorata amount of such Net Available Cash (based on the then outstanding principal amount of the Notes outstanding and the principal amount (or accreted value if issued with discount) of such other Pari Passu Indebtedness); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (3)(B) above, the Issuers or such Restricted Entity shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; provided, however, that the prior proviso shall not affect the ability of the Company of the Restricted Entities to incur Indebtedness under Section 4.06(b). Pending application of Net Available Cash pursuant to this covenant, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness, unless required to do otherwise pursuant to the terms of the 14% Senior Secured Notes or any other outstanding secured Indebtedness of either Issuer or Restricted Entity.
(b) In the event of an Asset Disposition that requires the Issuers to make an offer to purchase the Notes (and other Indebtedness) pursuant to Section 4.10(a)(3)(B)(2) the Issuers shall purchase Notes tendered pursuant to an offer by the Issuers for the Notes (and such other Indebtedness) (the “Offer”) at a purchase price of 100% of their propertythen outstanding principal amount (such other Indebtedness at a purchase price of 100% of its principal amount or, business or assetsin the event such other Indebtedness was issued with significant original issue discount, including 100% of the accreted value thereof) without premium, plus accrued but unpaid interest (or, in respect of such other Indebtedness, such lesser price, if any, as may be provided for by merger or consolidation the terms of such Indebtedness) in accordance with the procedures set forth in Section 4.10(c). If the aggregate purchase price of the Notes (and such other Indebtedness) tendered exceeds the Net Available Cash allotted to their purchase, the Trustee will select the Notes and such other Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of a Subsidiary the Notes will be denominations of $1,000 principal amount or Unrestricted Subsidiarymultiples thereof. The Company shall not be required to make such an Offer to purchase Notes (and other Indebtedness) pursuant to Section 4.10(a)(3)(B)(2) if the Net Available Cash available therefrom is less than $15.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). To the extent that the aggregate amount of Notes and other Indebtedness tendered is less than the Net Available Cash required to be used to make an Offer to the holders of Notes and such Indebtedness, the Company may use such excess Net Available Cash for any other purpose not prohibited by this Indenture.
(c) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer pursuant to Section 4.10(a)(3)(B)(2), the Company shall deliver to the Trustee and send, by first-class mail to each holder, a written notice stating that the holder may elect to have its Notes purchased by the Issuers either in whole or in part (subject to prorating as described in Section 4.10(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 principal amount, at the applicable purchase price set forth in Section 4.10(b). The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the “Purchase Date”) and shall contain such information concerning the business of the Issuers which the Issuers in good faith believe will enable such holders to make an informed decision and all instructions and materials necessary to tender Notes pursuant to the Offer, together with the information contained in clause (3).
(1) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officer’s Certificate as to (A) the amount of the Offer (the “Offer Amount”), including information as to any sale Pari Passu Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.10(a) and (b). On such date, the Company shall irrevocably deposit with the Trustee or with a Paying Agent in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other transfer Pari Passu Indebtedness, the portion of the deposit described in the preceding sentence that is applicable to such other Pari Passu Indebtedness may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or issuance portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of any Equity Interests payment) to each tendering holder in the amount of any Subsidiary, whether the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Offer Amount applicable to the Notes, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.10.
(2) Holders electing to have Notes purchased shall be required to surrender the Notes, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Parent Company receives not later than one Business Day prior to the Purchase Date, a facsimile transmission or one letter setting forth the name of their respective Subsidiaries the holder, the principal amount of the Notes which were delivered for purchase by the holder and a statement that such holder is withdrawing his election to have such Notes purchased. Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(3) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officer’s Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section. Notes shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the issuancesurrendering holder.
(d) The Company will not, sale or transfer of Equity Interests by one of the Company's Subsidiaries or Unrestricted and will not permit any Restricted Subsidiary to, and including each Restricted Entity will not, engage in any sale and leaseback transaction (any of the foregoing, an "Asset Sale")Swaps, unless:
(1) at least 75% the time of the total consideration for entering into such Asset Sale or series of related Swap and immediately after giving effect to such Asset Sales consists of cash or Cash Equivalents; providedSwap, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on as a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1) the Company or the Parent may and their respective Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalentsconsequence thereof;
(2) the Company and Related Business Assets that are the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose subject of assets pursuant to and in accordance with Section 5.1such Asset Swap have a substantially comparable fair market value;
(3) in the event such Asset Swap involves the transfer by the Company and or any Restricted Entity of assets having an aggregate fair market value, as determined by the Parent may and their respective Subsidiaries may sell or dispose Board of damagedDirectors in good faith, worn out or other obsolete personal property in excess of $10 million, the ordinary course terms of business so long as such property is no longer necessary for the proper conduct Asset Swap have been approved by a majority of the Company's or members of the Parent's business or the business Board of such Subsidiary, as applicable;Directors; and
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;cash received shall be applied in accordance with Section 4.10(a)(3).
(5e) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. 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 Section 4.134.10, the Company's compliance or Issuers will comply with the compliance of any of the Company's subsidiaries with such applicable securities laws and regulations shall and will not in be deemed to have breached its obligations hereunder and of itself cause a breach of the Company's obligations under this Section 4.13. If the payment date in connection 4.10 by virtue of its compliance with an Asset Sale Offer hereunder is on such securities laws 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Dateregulations.
Appears in 1 contract
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not not, and shall not permit any of their respective Subsidiaries Restricted Subsidiary to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose ofand each Restricted Entity shall not, directly or indirectly, consummate any Asset Disposition unless:
(1) the Company or such Restricted Entity receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration thereof received by the Company or such Restricted Entity is in the form of cash, Temporary Cash Investments or Designated Noncash Consideration; provided, however, that the amount of any Designated Noncash Consideration received by the Company or any Restricted Entity in such Asset Disposition having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (2) at the time of determination, shall not exceed an amount equal to the greater of (x) $25 million and (y) 2.5% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; provided further that the amount of:
(a) any liabilities of the Company or any Restricted Entity of the Issuer (other than Subordinated Obligations) that are assumed by the transferee of any such assets,
(b) any notes or other obligations or other securities or assets received by the Company or such Restricted Entity of the Company from such transferee that are converted by the Company or such Restricted Entity of the Company into cash within 180 days of the receipt thereof (to the extent of the cash received), and
(c) any Indebtedness of a Restricted Entity (other than Subordinated Obligations) that is no longer a Restricted Entity as a result of the Asset Disposition shall be deemed to be cash for the purposes of this provision;
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or such Restricted Entity, as the case may be:
(A) first, to the extent the Company or such Restricted Entity elects, to acquire Additional Assets or improve Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that the Company shall have an additional six months to apply such Net Available Cash pursuant to this clause (A) if it shall have entered into a binding acquisition or purchase contract in respect of Additional Assets prior to the expiration of such one-year period; provided further that if the Net Available Cash from any Asset Disposition of an FCC License, Industry Canada License or any similar telecommunications license or any Capital Stock of the FCC License Subsidiary, MSV Canada Inc. or any other entity holding a telecommunications license is in excess of $10.0 million, the Net Available Cash from such Asset Disposition may not be applied as provided in this clause (A) and shall be immediately applied as required in clause (b) below; and
(B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above:
(1) to the extent required by the terms of the Old Notes or any other secured Indebtedness of either Issuer or any Restricted Entity, make an offer to the holders of the Old Notes and the holders of such other secured Indebtedness that requires such an offer to purchase, prepay or repay the Old Notes and such other secured Indebtedness pursuant to the terms thereof; and
(2) to the extent that such Net Available Cash is remaining after application in accordance with Section 4.10(a)(3)(B)(1) above, to make an offer to holders of the Notes (and to holders of other Pari Passu Indebtedness that requires such an offer) to purchase Notes (and such other Pari Passu Indebtedness that require such an offer) pursuant to and subject to the conditions contained in this Indenture; provided, that such offer to holders of Notes is for no less than the Noteholders pro rata amount of such Net Available Cash (based on the then outstanding principal amount of the Notes outstanding and the principal amount (or accreted value if issued with discount) of such other Pari Passu Indebtedness); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (3)(B) above, the Issuers or such Restricted Entity shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; provided, however, that the prior proviso shall not affect the ability of the Company of the Restricted Entities to incur Indebtedness under Section 4.06(b). Pending application of Net Available Cash pursuant to this covenant, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness, unless required to do otherwise pursuant to the terms of the Old Notes or any other outstanding secured Indebtedness of either Issuer or Restricted Entity.
(b) In the event of an Asset Disposition that requires the Issuers to make an Offer to purchase the Notes (and other Indebtedness) pursuant to Section 4.10(a)(3)(B)(2) the Issuers shall purchase Notes tendered pursuant to an Offer by the Issuers for the Notes (and such other Indebtedness) (the "Offer") at a purchase price of 100% of their propertythen outstanding principal amount (such other Indebtedness at a purchase price of 100% of its principal amount or, business or assetsin the event such other Indebtedness was issued with significant original issue discount, including 100% of the accreted value thereof) without premium, plus accrued but unpaid interest (or, in respect of such other Indebtedness, such lesser price, if any, as may be provided for by merger or consolidation the terms of such Indebtedness) in accordance with the procedures set forth in Section 4.10(c). If the aggregate purchase price of the Notes (and such other Indebtedness) tendered exceeds the Net Available Cash allotted to their purchase, the Trustee will select the Notes and such other Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of a Subsidiary the Notes will be denominations of $1,000 principal amount or Unrestricted Subsidiarymultiples thereof. The Company shall not be required to make such an Offer to purchase Notes (and other Indebtedness) pursuant to Section 4.10(a)(3)(B)(2) if the Net Available Cash available therefrom is less than $15.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). To the extent that the aggregate amount of Notes and other Indebtedness tendered is less than the Net Available Cash required to be used to make an Offer to the holders of Notes and such Indebtedness, the Company may use such excess Net Available Cash for any other purpose not prohibited by this Indenture.
(c) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer pursuant to Section 4.10(a)(3)(B)(2), the Company shall deliver to the Trustee and send, by first-class mail to each holder, a written notice stating that the holder may elect to have its Notes purchased by the Issuers either in whole or in part (subject to prorating as described in Section 4.10(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 principal amount, at the applicable purchase price set forth in Section 4.10(b). The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Issuers which the Issuers in good faith believe will enable such holders to make an informed decision and all instructions and materials necessary to tender Notes pursuant to the Offer, together with the information contained in clause (3).
(1) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officer's Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any sale Pari Passu Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.10(a) and (b). On such date, the Company shall irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other transfer Pari Passu Indebtedness, the portion of the deposit described in the preceding sentence that is applicable to such other Pari Passu Indebtedness may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Notes or issuance portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of any Equity Interests payment) to each tendering holder in the amount of any Subsidiary, whether the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Offer Amount applicable to the Notes, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.10.
(2) Holders electing to have Notes purchased shall be required to surrender the Notes, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Parent Company receives not later than one Business Day prior to the Purchase Date, a facsimile transmission or one letter setting forth the name of their respective Subsidiaries the holder, the principal amount of the Notes which were delivered for purchase by the holder and a statement that such holder is withdrawing his election to have such Notes purchased. Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(3) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officer's Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section. Notes shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the issuancesurrendering holder.
(d) The Company will not, sale or transfer of Equity Interests by one of the Company's Subsidiaries or Unrestricted and will not permit any Restricted Subsidiary to, and including each Restricted Entity will not, engage in any sale and leaseback transaction (any of the foregoing, an "Asset Sale")Swaps, unless:
(1) at least 75% the time of the total consideration for entering into such Asset Sale or series of related Swap and immediately after giving effect to such Asset Sales consists of cash or Cash Equivalents; providedSwap, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on as a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1) the Company or the Parent may and their respective Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalentsconsequence thereof;
(2) the Company and Related Business Assets that are the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose subject of assets pursuant to and in accordance with Section 5.1such Asset Swap have a substantially comparable fair market value;
(3) in the event such Asset Swap involves the transfer by the Company and or any Restricted Entity of assets having an aggregate fair market value, as determined by the Parent may and their respective Subsidiaries may sell or dispose Board of damagedDirectors of the General Partner in good faith, worn out or other obsolete personal property in excess of $10 million, the ordinary course terms of business so long as such property is no longer necessary for Asset Swap have been approved by a majority of the proper conduct members of the Board of Directors of the Company's or the Parent's business or the business of such Subsidiary, as applicable;; and
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;cash received shall be applied in accordance with Section 4.10(a)(3).
(5e) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. 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 Section 4.134.10, the Company's compliance or Issuers will comply with the compliance of any of the Company's subsidiaries with such applicable securities laws and regulations shall and will not in be deemed to have breached its obligations hereunder and of itself cause a breach of the Company's obligations under this Section 4.13. If the payment date in connection 4.10 by virtue of its compliance with an Asset Sale Offer hereunder is on such securities laws 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Dateregulations.
Appears in 1 contract
Sources: Indenture (Harbinger Capital Partners Master Fund I, Ltd.)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not will not, and shall will not permit any of their respective its Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their its property, business or assetsassets (other than cash or Cash Equivalents), including by merger or consolidation (in the case of a Subsidiary or Unrestricted Subsidiaryof the Company), and including any sale or other transfer or issuance of any Equity Interests of any SubsidiarySubsidiary of the Company, whether by the Company or the Parent or one a Subsidiary of their respective Subsidiaries either or through the issuance, sale or transfer of Equity Interests by one a Subsidiary of the Company's Subsidiaries or Unrestricted Subsidiary , and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
unless (11)(a) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following after the date of such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal are applied (i) to the Excess Proceeds optional redemption of the Senior Notes in accordance with the terms of the Indenture and other Indebtedness of the Company ranking on a parity with the Senior Notes with similar provisions requiring the Company to make an offer to purchase or to redeem such Indebtedness with the proceeds of such Asset Sale, pro rata in proportion to the respective Accreted Value (or principal amount and accrued interest in the case of Indebtedness without an original issue discount) of the Senior Notes and such other Indebtedness then outstanding, (ii) to the repurchase of the Senior Notes and such other Indebtedness ranking on a parity with the Senior Notes and with having similar provisions requiring the Company to make an offer to purchase or to redeem such Indebtedness with the proceeds from of such Asset Sale asset sale pursuant to a an irrevocable, unconditional cash offer (subject only to conditions required by applicable law, if any) (pro rata in proportion to the respective principal amounts Accreted Value (or accreted values principal amount and accrued interest in the case of Indebtedness issued with without an original issue discount) of the Senior Notes and such other Indebtedness then outstanding) to repurchase the Senior Notes and such other Indebtedness (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) Accreted Value (the "Asset Sale Offer Price") ), together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment, made within 360 days of such Asset Sale, or (iii) to the repayment of Indebtedness issued by a Subsidiary of the Company (in respect of which Indebtedness the Company is not a direct or contingent obligor) if required by the terms of such Indebtedness, or (b) within 360 days following such Asset Sale, the Asset Sale Offer Amount is invested in fixed assets and property which in the good faith reasonable judgment of the Board of Directors of the Company will be an asset of, and constitute or be a part of a Related Business of, the Company or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction or is used to make Permitted Investments (other than Cash Equivalents, Senior Notes or the Existing Notes), (2) at least 85% of the consideration for such Asset Sale or series of related Asset Sales consists of Cash or Cash Equivalents, and (3) the Board of Directors of the Company determines, in good faith, that the Company or such Subsidiary, as applicable, receives fair market value for such Asset Sale. An Asset Sale Offer may be deferred until the accumulated Net Cash Proceeds from Asset Sales not applied to the uses set forth in any of clauses (1)(a)(i), 1(a)(iii) and 1(b) above (the "Excess Proceeds") exceeds $20 million, provided that, in the case of an Asset Sale by a Subsidiary that is not a Wholly Owned Subsidiary, only the Company's pro rata portion of such Net Cash Proceeds shall constitute Net Cash Proceeds subject to the provisions of this Section 4.10. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) . Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount Amount, plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Senior Notes and, if applicable, such other Indebtedness ranking on a parity with the Senior Notes and with provisions requiring the Company to make an offer to purchase or redeem such Indebtedness with the proceeds of such Asset Sale properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness Senior Notes so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Senior Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds for general corporate purposes as otherwise permitted by this the Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
. For purposes of clause (e2) above, total consideration received means the total consideration received for such Asset Sales, minus the amount of (a) Indebtedness (other than Subordinated Indebtedness) assumed by a transferee of such Asset Sale, (b) Purchase Money Indebtedness secured solely by the assets sold and repaid upon such Asset Sale or assumed by a transferee of such Asset Sale and (c) property that within 30 days of such Asset Sale is converted into Cash or Cash Equivalents (to the extent of such cash or Cash Equivalents received), provided that, with respect to this clause (c), such cash or Cash Equivalents so received shall be deemed to have been received on the date of such Asset Sale and shall be applied in the manner and within the time specified by Section 4.10 pertaining to the proceeds from such Asset Sale. Notwithstanding, and without complying with, the other foregoing provisions of this the other paragraphs of Section 4.134.10:
(1i) the Company or the Parent may and their respective its Subsidiaries may, in the ordinary course of business, (aA) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (bB) liquidate Cash Equivalents;
(2ii) the Company and the Parent may and their respective its Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3iii) the Company and the Parent may and their respective its Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of the Company or such Subsidiary, as applicable;
(4iv) the Company and the Parent may and the Guarantors its Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantorsits Subsidiaries or Restricted Affiliates;
(5v) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective its Subsidiaries may surrender or waive contract rights or settle, release or surrender of contract, tort or other litigation claims in the ordinary course of business any kind or grant Liens not prohibited by this the Indenture; and;
(7vi) the Company and the Parent may and their respective its Subsidiaries may make exchange all or a portion of its property, businesses or assets for Permitted Investments (other than Senior Notes and Existing Notes) or for property, businesses or assets of a type used in a Related Business, or a combination of any such Permitted Investments, property, businesses or assets; provided that any Cash or Cash Equivalents received pursuant to clause (d) any such exchange shall be applied in the definition thereof and Restricted Investments permitted under Section 4.9. All manner applicable to Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. 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 as set forth pursuant to the provisions of any securities laws or regulations conflict with the immediately preceding provisions of this Section 4.134.10; and provided, further, that in the case of a transaction exceeding $15 million of consideration to any party thereto, the Company's compliance Company shall have obtained a favorable written opinion by an independent financial advisor of national reputation as to the fairness from a financial point of view to the Company or the compliance of any such Subsidiary of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Dateproposed transaction.
Appears in 1 contract
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or and the Parent Guarantors shall not not, and shall not permit any of their respective Subsidiaries to, in one or a series of related transactions, convey, sell, lease, transfer, assign or otherwise dispose of, directly or indirectly, any of their its property, business or assets, including by merger or consolidation (in the case of a Guarantor or a Subsidiary or Unrestricted Subsidiaryof the Company), and including any sale or other transfer or issuance of any Equity Interests of any SubsidiarySubsidiary of the Company, whether by the Company or the Parent or one of their respective Subsidiaries a Subsidiary or through the issuance, sale or transfer of Equity Interests by one a Subsidiary of the Company's Subsidiaries or Unrestricted Subsidiary , and including any sale and leaseback transaction (any of the foregoing, an "“Asset Sale"”), unless:
unless (1) the Company (or a Subsidiary of the Company, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and (2) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent applicable Subsidiary for the Asset Sale is in the form of cash or Cash Equivalents, Related Business Assets or a combination thereof; provided that the amount of: (a) any liabilities (as shown on the Company’s or such Subsidiary’s most recent balance sheet or in the notes thereto) of the Company or any of their respective its Subsidiaries that rank equal in right of payment to the Notes and that are assumed by the transferee of any such assets, provided, that the Company and all of its Subsidiaries are unconditionally released from any further liability with respect to such assumed liabilities, and (b) any securities, notes or other obligations received by the Company or any such Subsidiary from such Asset Saletransferee that are immediately (but in no event more than 30 days after receipt, plus subject to customary settlement periods) converted by the Company or such Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents, as the case may be, received) shall be deemed to be cash or Cash Equivalents, as the case may be, for purposes of this provision. Within 360 days after the receipt of any Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such from an Asset Sale, the Company or the applicable Subsidiary, as the case may be, may apply such Net Cash Proceeds therefrom Proceeds, at its option, to: (w) permanently reduce Indebtedness outstanding under the "Asset Sale Amount") shall be:
(1) invested Credit Agreement; provided, that, in assets and property (except in connection with the acquisition case of a Subsidiary which revolving credit facility or similar arrangement that makes credit available under the Credit Agreement, such commitment is also permanently reduced by such amount, or (x) purchase one or more businesses or to purchase more than 50% of the Equity Interests of a Guarantor Person operating one or more businesses so long as such Person becomes a Subsidiary, (y) make capital expenditures, and/or (z) acquire other long-term assets, in each case, so long as such business or businesses, capital expenditures or long-term assets are in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any such Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings outstanding under the Credit Agreement or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this the Indenture.
(c) The accumulated . Any Net Cash Proceeds from Asset Sales that are not so applied as set forth in (b)(1) or (b)(2) shall constitute "invested will be considered “Excess Proceeds." Within 30 days after ” When the date that the aggregate amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds10,000,000, the Company shall apply make an amount (the "Asset Sale Offer Amount") equal offer, within such 360 day period, to the Excess Proceeds to the repurchase all holders of Notes and all holders of the Notes and such Company’s other Indebtedness ranking on a parity with equal in right of payment to the Notes and with similar provisions requiring the Company to make an offer to purchase (or otherwise repay) such Indebtedness with the proceeds from of such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) outstanding (the "an “Asset Sale Offer"”) at a to purchase the maximum principal amount of Notes and such other Indebtedness that may be purchased out of the Excess Proceeds. The offer price of for an Asset Sale Offer will be 100% of the principal amount (or accreted value in of the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with Notes plus accrued and unpaid interest and Liquidated Damages, if any, on the Notes to the date of paymentpurchase. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered The offer price will be paid in cash in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any)procedures set forth herein. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer AmountExcess Proceeds, the Company may use any remaining Net Cash Excess Proceeds as otherwise permitted not so utilized for general corporate purposes. If the aggregate principal amount of Notes and such other Indebtedness surrendered by this Indenture and following holder thereof exceeds the consummation amount of each Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of a purchase of Notes pursuant to an Asset Sale Offer Offer, the amount of Excess Proceeds amount shall be reset to at zero.
(e) . Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1i) the Company or the Parent may and their respective its Subsidiaries may, in the ordinary course of business, (a1) convey, sell, lease, transfer, assign or otherwise dispose of inventory inventory, receivables or pianos in the Company’s Concert and other assets acquired and held for resale Artist Piano Bank, in each case in the ordinary course of business consistent with past practice and (b2) liquidate Cash Equivalents;
(2ii) the Company may, and the Parent may and their respective its Subsidiaries may may, convey, sell, lease, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1Article V hereof;
(3iii) the Company may, and the Parent may and their respective its Subsidiaries may may, sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of the Company or such Subsidiary, as applicable;
(4iv) the Company may convey, sell, lease, transfer, assign or otherwise dispose of assets to any of the Company’s Wholly Owned Subsidiaries, and a Wholly Owned Subsidiary may convey, sell, lease, transfer, assign or otherwise dispose of assets to the Parent Company or to another Wholly Owned Subsidiary;
(v) a Wholly Owned Subsidiary may issue Equity Interests to the Company or to another Wholly Owned Subsidiary;
(vi) the Company may, and the Guarantors its Subsidiaries may, make Restricted Payments that are permitted by Section 4.9 hereof;
(vii) Foreign Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets to the Company or any of its Subsidiaries, and
(viii) the Parent Company may, and its Subsidiaries may, sell or otherwise transfer to a third party financing company any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, Receivables Financing Notes in an amount not to exceed $60,000,000 in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. 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 lawsaggregate at any one time outstanding. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.13, compliance by the Company's compliance Company or the compliance of any of the Company's subsidiaries its Subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's its obligations under this Section 4.13. 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 shall will be paid to the Person in whose name a Note is registered at the close of business on such Record Date, and such interest will not be payable to Holders who tender Notes pursuant to such Asset Sale Offer.
Appears in 1 contract
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not will not, and shall will not permit any of their respective Subsidiaries Restricted Subsidiary to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, consummate any Asset Disposition unless (i) the Parent or such Restricted Subsidiary receives consideration at the time of their propertysuch Asset Disposition at least equal to the fair market value (including as to the value of all non cash consideration), business or assets, including as determined in good faith by merger or consolidation the Board of Directors of the Parent of the shares and assets subject to such Asset Disposition and (ii) except in the case of a Subsidiary or Unrestricted Subsidiary)Tower Asset Exchange, and including any sale or other transfer or issuance of any Equity Interests of any Subsidiary, whether by the Company or the Parent or one of their respective Subsidiaries or through the issuance, sale or transfer of Equity Interests by one of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
(1) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration thereof received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Restricted Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under is in the Credit Agreement and to permanently reduce form of cash or cash equivalents. Within 330 days after the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application receipt of any Net Available Cash Proceedsfrom an Asset Disposition, the Company Parent or the applicable Restricted Subsidiary may apply such Net Available Cash to: (A) prepay, repay, redeem or purchase Indebtedness (other than Disqualified Stock) of a Restricted Subsidiary (provided, that the applicable Restricted Subsidiary also may prepay, repay, redeem or purchase its own outstanding Indebtedness) (in each case other than Indebtedness owed to the Parent may temporarily reduce revolving credit borrowings or otherwise invest an Affiliate of the Net Cash Proceeds Parent), (B) acquire all or substantially all of the assets of an entity engaged in any manner a Permitted Business, (C) acquire Voting Stock of an entity engaged in a Permitted Business from a Person that is not prohibited a Subsidiary of the Parent; PROVIDED, that (x) after giving effect thereto, the Parent or its Restricted Subsidiary owns a majority of such Voting Stock and (y) such acquisition is otherwise made in accordance with this Term Note, including, without limitation, Section 11.04, or (D) make a capital expenditure or acquire other long-term assets that are used or useful in a Permitted Business; PROVIDED that any assets, Voting Stock, capital expenditures or long-term assets acquired pursuant to clause (B), (C) or (D) above shall be held by this Indenture.
a Restricted Subsidiary and not by the Parent. To the extent of the balance of such Net Available Cash after application in accordance with clauses (cA), (B), (C) The accumulated Net Cash Proceeds from Asset Sales not applied or (D), the Issuers shall make an Offer (as defined in Section 11.06(b)) to the Noteholders to purchase Term Notes pursuant to and subject to the conditions set forth in paragraph (b)(1b) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after of this Section 11.06. Notwithstanding the date that foregoing provisions, the amount of Excess Proceeds exceeds $10 million, which date Parent and its Restricted Subsidiaries shall not be prior required to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered any Net Available Cash in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient herewith except to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount Net Available Cash from all Asset Dispositions which are not applied in accordance with this covenant exceeds $10.0 million. Pending application of Notes and such other pari passu Indebtedness tendered Net Available Cash pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amountthis covenant, the Company may use any remaining such Net Available Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) Notwithstanding, and without complying with, invested in Temporary Cash Investments. For the other provisions purposes of this Section 4.13:
11.06(a), the following are deemed to be cash: (1x) the Company or assumption by the transferee of Indebtedness of the Parent may (other than Disqualified Stock of the Parent and their respective Subsidiaries may, other than Indebtedness that is subordinated to the obligations of the Parent with respect to the Term Notes) or Indebtedness of any Restricted Subsidiary and the release of the Parent or such Restricted Subsidiary from all liability on such Indebtedness in the ordinary course of businessconnection with such Asset Disposition, (ay) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(2) the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or securities received by the Parent or any Restricted Subsidiary from the transferee that are converted by the Parent or such Restricted Subsidiary into cash within 20 days of the Guarantors;
applicable Asset Disposition (5to the extent of the cash received), and (z) any liabilities (as shown on the Company and Parent's or such Restricted Subsidiary's most recent balance sheet) of the Parent may or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their respective Subsidiaries may, in terms subordinated to the ordinary course obligations of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in with respect to the ordinary course Term Notes) that are assumed by the transferee of business or grant Liens not prohibited by this Indenture; and
(7) the Company and any such assets pursuant to a customary novation agreement that releases the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and or any such Restricted Investments permitted under Section 4.9. All Net Cash Proceeds Subsidiary from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. 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 Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Datefurther liability.
Appears in 1 contract
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or Issuers and the Parent shall not Guarantors will not, and shall will not permit any of their respective Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their its property, business or assets, including by merger or consolidation (in the case of a Guarantor or a Subsidiary or Unrestricted Subsidiaryof an Issuer), and including any sale or other transfer or issuance of any Equity Interests of any SubsidiarySubsidiary of the Trust, whether by the Company Trust or the Parent or one a Subsidiary of their respective Subsidiaries either or through the issuance, sale or transfer of Equity Interests by one a Subsidiary of the Company's Subsidiaries or Unrestricted Subsidiary Trust, and including any sale and leaseback transaction transaction, other than surrender of any reverse split dollar insurance policy (any of the foregoing, an "Asset Sale"), unless:
unless (11)(a) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or within 395 days after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% date of Adjusted Consolidated Net Tangible Assets, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal are applied to the Excess Proceeds optional redemption of the Notes in accordance with the terms of the Indenture or to the repurchase of the Notes and any other Pari Passu Indebtedness which by its terms requires such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale repurchase pursuant to a an irrevocable, unconditional cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") to repurchase Notes and such Pari Passu Indebtedness at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each , made within 360 days of such Asset Sale Offer shall remain open for 20 Business Days or (b) within 360 days following its commencement (the "such Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer PeriodSale, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient (i) invested (or committed, pursuant to purchase all a binding commitment subject only to reasonable, customary closing conditions, to be invested, and in fact is so invested, within an additional 90 days) in assets and property (other than notes, bonds, obligation and securities, except in connection with the acquisition of a wholly owned Subsidiary) which in the good faith reasonable judgment of the Board of Directors of the Trust will immediately constitute or be a part of a Related Business of the Trust or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction or (ii) used to permanently reduce the amount of any Indebtedness so tenderedpermitted pursuant to paragraph (b) at of the definition "Permitted Indebtedness" (including that in the case of a revolver or similar arrangement that makes credit available, such commitment is also permanently reduced by such amount), or (c) the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount Amount is applied in a combination of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1) the Company or the Parent may and their respective Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
), (2) the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. 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 Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date.least
Appears in 1 contract
Sources: Indenture (Venture Service Co)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not not, and shall not permit any of their respective its Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their its property, business or assetsassets (other than cash or Cash Equivalents), including by merger or consolidation (in the case of a Subsidiary or Unrestricted Subsidiary)consolidation, and including any sale or other transfer or issuance of any Equity Interests (other than directors qualifying shares) of any SubsidiarySubsidiary of the Company, whether by the Company or the Parent or one of their respective Subsidiaries or through the issuance, sale or transfer of Equity Interests by one a Subsidiary of the Company's Subsidiaries or Unrestricted Subsidiary , and including (except as provided in clause (vi) of the third paragraph of this section) any sale Sale and leaseback transaction Leaseback Transaction (any of the foregoing, an "Asset Sale"), unless:
(1) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2a) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following after the date of such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal are applied to the Excess Proceeds to the repurchase optional redemption of the Notes Debentures in accordance with the terms of this Indenture and such other Indebtedness of the Company ranking on a parity with the Notes and Debentures from time to time outstanding with similar provisions requiring the Company to make an offer to purchase or redeem such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable lawof asset sales, if any) (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 Debentures and such other Indebtedness then outstanding or to the repurchase of the Debentures and such other Indebtedness pursuant to a cash offer (subject only to conditions required by applicable law, if any, 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 Debentures and such other Indebtedness then outstanding) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount thereof (or accreted value the Accreted Value thereof, in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered made with in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1) the Company or the Parent may and their respective Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(2) the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business 360 days of such SubsidiaryAsset Sale, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. 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 Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date.or
Appears in 1 contract
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or Issuer and the Parent shall not Guarantors will not, and shall will not permit any of their respective Subsidiaries to, individually or collectively, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their its property, business or assets, including by merger or consolidation (in the case of a Subsidiary or Unrestricted Subsidiary)consolidation, and including any sale or other transfer or issuance of any Equity Interests of any SubsidiarySubsidiary of ▇▇▇▇▇▇▇ International, whether by the Company ▇▇▇▇▇▇▇ International or the Parent or one a Subsidiary of their respective Subsidiaries ▇▇▇▇▇▇▇ International or through the issuance, sale or transfer of Equity Interests by one a Subsidiary of the Company's Subsidiaries or Unrestricted Subsidiary ▇▇▇▇▇▇▇ International, and including any sale and leaseback transaction (any an “Asset Sale”), unless (i)(a) within 360 days after the date of such Asset Sale, the Net Cash Proceeds therefrom (the “Asset Sale Offer Amount”) are applied to the optional redemption of the foregoingSecurities in accordance with the terms of this Indenture or to the repurchase of the Securities and other Indebtedness of the Issuer on a parity with the Securities with similar provisions requiring the Issuer to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (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 Securities and such other Indebtedness then outstanding) pursuant to an irrevocable, unconditional cash offer (the “Asset Sale Offer”) to repurchase Securities at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an "original issue discount) with respect to each such series of Indebtedness (the “Asset Sale Offer Price”) together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment, made within 540 days of such Asset Sale or (b) within 540 days following such Asset Sale"), unless:
the Asset Sale Offer Amount is (1) at least 75invested in assets and property (other than notes, bonds, obligation and securities) which in the good faith judgment of the Board of Directors of ▇▇▇▇▇▇▇ International will immediately constitute or be a part of a Related Business of ▇▇▇▇▇▇▇ International or such Subsidiary (if it continues to be a Subsidiary) immediately following such investment or (2) used to permanently reduce Senior Debt (provided that in the case of a revolving loan agreement or similar arrangement that makes credit available, such commitment is so permanently reduced by such amount), (ii) no more than the greater of (A) $20 million or (B) 15% of the total consideration for such Asset Sale or series of related Asset Sales consists of consideration other than cash or Cash Equivalents; provided, provided however, that with respect to the sale of one or more hotel properties, up to 75than 15% of the total consideration may consist of Indebtedness consideration other than cash or Cash Equivalents if (A) the portion of such consideration that does not consist of cash or Cash Equivalents consists of assets of a type ordinarily used in the operation of a Related Business (including Capital Stock of a person that becomes a wholly owned Subsidiary and that holds such assets) to be used by the Issuer or a Subsidiary in the conduct of a Related Business, and (B) the terms of such Asset Sale have been approved by a majority of the purchaser members of the Board of Directors of ▇▇▇▇▇▇▇ International having no personal stake in such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
transaction, (2iii) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to to, such Asset Sale; and
, and (3iv) if the Parent and value of the Company determine assets disposed of is at least $20 million, the Board of Directors of ▇▇▇▇▇▇▇ International determines in good faith that the consideration received by the Parent, the Company ▇▇▇▇▇▇▇ International or their respective Subsidiariessuch Subsidiary, as applicable, equals the receives fair market value for such Asset Sale.
Sale (b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received as evidenced by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business resolution of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount Board of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereofDirectors). Pending the final application of any Net Cash Proceeds, the Company or the Parent Issuer may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.. Notwithstanding the foregoing provisions of the prior paragraph:
(ci) The ▇▇▇▇▇▇▇ International and its Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign or otherwise dispose of inventory acquired and held for resale in the ordinary course of business;
(ii) ▇▇▇▇▇▇▇ International and its Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Article V;
(iii) ▇▇▇▇▇▇▇ International and its Subsidiaries may sell or dispose of damaged, worn out or other obsolete property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the business of ▇▇▇▇▇▇▇ International or such Subsidiary, as applicable;
(iv) ▇▇▇▇▇▇▇ International and any of its Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets to ▇▇▇▇▇▇▇ International or any Guarantor; and
(v) ▇▇▇▇▇▇▇ International may sell Non-Strategic Real Estate. An Asset Sale Offer may be deferred until the accumulated Net Cash Proceeds from Asset Sales not applied as to the uses set forth in (b)(1i) or above (b)(2) shall constitute "the “Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds ”) exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale 50 million and that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "“Asset Sale Offer Period"”).
(d) . Upon expiration of the Asset Sale Offer Period, the Company Issuer shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the applicable Asset Sale Offer Price (together with accrued and unpaid interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company Issuer may use any remaining Net Cash Proceeds for general corporate purposes as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
. For purposes of (eii) Notwithstandingabove, and without complying with, total consideration received means the other provisions total consideration received for such Asset Sales minus the amount of this Section 4.13:
(1) the Company or the Parent may and their respective Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign Senior Debt assumed by a transferee which assumption permanently reduces the amount of Indebtedness outstanding on the Issue Date or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(2) the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments permitted pursuant to clause (da) or (c) of the definition of Permitted Indebtedness (including that in the definition thereof case of a revolving loan agreement or similar arrangement that makes credit available, such commitment is so reduced by such amount), (b) FF&E Indebtedness secured solely by the assets sold and Restricted Investments permitted under Section 4.9assumed by a transferee and (c) property that within 30 days of such Asset Sale is converted into Cash or Cash Equivalents. All Net Cash Proceeds from an Event of Loss shall be reinvested invested, used for prepayment of Senior Debt, or used to repurchase Securities, all within the period and as otherwise provided above in clauses (b)(1i)(a) or (b)(2i)(b) of the first paragraph of this Section 4.13. Any Notice of an Asset Sale Offer shall be sent, on or prior to the commencement of the Asset Sale Offer, by first-class mail, by the Issuer to each Holder at its registered address, with a copy to the Trustee. The Asset Sale Offer shall remain open for at least 20 Business Days following its commencement. The notice to the Holders shall contain all information, instructions and materials required by applicable law or otherwise material to such Holders’ decision to tender Securities pursuant to the Asset Sale Offer. The notice, which (to the extent consistent with this Indenture) shall govern the terms of an Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant to such notice and this Section 4.13;
(2) the Asset Sale Offer Amount, the Asset Sale Offer Price (including the amount of accrued but unpaid interest (and Liquidated Damages, if any)), and the date of purchase;
(3) that any Security or portion thereof not tendered or accepted for payment will continue to accrue interest if interest is then accruing;
(4) that, unless the Issuer defaults in depositing cash with the Paying Agent (which may not for purposes of this Section 4.13, notwithstanding anything in this Indenture to the contrary, be the Issuer or any Affiliate of the Issuer) in accordance with the last paragraph of this Section 4.13, any Security, or portion thereof, accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Asset Sale Purchase Date;
(5) that Holders electing to have a Security, or portion thereof, purchased pursuant to an Asset Sale Offer will be required to surrender their Security, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Security completed, to the Paying Agent (which may not for purposes of this Section 4.13, notwithstanding any other provision of this Indenture, be the Issuer or any Affiliate of the Issuer) at the address specified in the notice;
(6) that Holders will be entitled to withdraw their elections, in whole or in part, if the Paying Agent receives, prior to the expiration of the Asset Sale Offer, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities the Holder is withdrawing and a statement containing a facsimile signature and stating that such Holder is withdrawing his election to have such principal amount of Securities purchased;
(7) that if Indebtedness, including Securities, in a principal amount in excess of the principal amount of Indebtedness, including Securities, to be acquired pursuant to the Asset Sale Offer are tendered and not withdrawn, the Issuer shall purchase Indebtedness, including Securities on a pro rata basis (with such adjustments as may be deemed appropriate by the Issuer so that only Securities, in denominations of $1,000 or integral multiples of $1,000 shall be acquired);
(8) that Holders whose Securities were purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; and
(9) the circumstances and relevant facts regarding such Asset Sales; and
(10) the CUSIP Number, if any, of the Securities. The Issuer agrees that 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 United States Federal and state securities laws. To the extent that , and any provisions of this Indenture which conflict with such laws shall be deemed to be superseded by the provisions of any securities laws such laws. On or regulations conflict with before the provisions date of this Section 4.13purchase, the Company's compliance Issuer shall (i) accept for payment Indebtedness, including Securities, or portions thereof properly tendered pursuant to the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. If the payment date in connection with an Asset Sale Offer hereunder is (on a pro rata basis if required pursuant to paragraph (7) above), (ii) deposit with the Paying Agent cash sufficient to pay the Asset Sale Offer Price for all Securities or after portions thereof so accepted and (iii) deliver to the Trustee Securities so accepted together with an interest Officers’ Certificate setting forth the Securities or portions thereof being purchased by the Issuer. The Paying Agent shall promptly mail or deliver to Holders of Securities so accepted payment Record Date in an amount equal to the Asset Sale Offer Price for such Securities, and on the Trustee shall promptly authenticate and mail or before deliver to such Holders a new Security equal in principal amount to any unpurchased portion of the associated Interest Payment Date, any accrued and unpaid interest (and Liquidated Damages, if any) due on such Interest Payment Date Security surrendered. Any Securities not so accepted shall be paid promptly mailed or delivered by the Issuer to the Person in whose name a Note is registered at the close of business on such Record DateHolder thereof.
Appears in 1 contract
Sources: Indenture (Kerzner International Employment Services LTD)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent Issuers shall not and the Guarantors shall not not, and neither the Issuers nor the Guarantors shall permit any of their respective the Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of the Issuers’ or their property, business or assets, including by merger or consolidation (in the case of a Subsidiary Guarantor or Unrestricted Subsidiaryone of the Subsidiaries), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiaryof the Subsidiaries, whether by the Company Issuers or any of the Parent or one of their respective Subsidiaries or through the issuance, sale or transfer of Equity Interests by one any of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and sale-leaseback transaction (any of the foregoing, an "“Asset Sale"), ”) unless:
(1) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;and
(2) no Default or Event the Board of Default shall have occurred and be continuing at Directors of the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine applicable Issuer determines in reasonable good faith that the consideration received by the Parent, the Company such Issuer or their respective Subsidiariessuch Subsidiary will receive, as applicable, equals the fair market value for such Asset Sale. For purposes of clause (1) of this Section 4.13(a), the following shall be deemed to constitute cash or Cash Equivalents: (a) the amount of any Indebtedness or other liabilities (other than Indebtedness or liabilities that are by their terms subordinated to the Notes and the Guarantees) of the Issuers or such Subsidiary that are assumed by the transferee of any such assets so long as the documents governing such liabilities provide that there is no further recourse to the Issuers or any of the Subsidiaries with respect to such liabilities and (b) fair market value of any marketable securities, currencies, notes or other obligations received by the Issuers or any such Subsidiary in exchange for any such assets that are converted into cash or Cash Equivalents within 30 days after the consummation of such Asset Sale, provided, that such cash and Cash Equivalents shall be treated as Net Cash Proceeds attributable to the original Asset Sale for which such property was received.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within Within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "“Asset Sale Amount") ”), if used, shall be:
(1) (i) used to retire Purchase Money Indebtedness secured by the asset which was the subject of the Asset Sale, or (ii) used to retire and permanently reduce Indebtedness incurred under the Credit Agreement; provided, that in the case of a revolver or similar arrangement that makes credit available, such commitment is permanently reduced by such amount; or
(2) invested in assets and property (other than notes, bonds, obligations and securities, except in connection with the acquisition of a Subsidiary which is a Guarantor Person in a Related Business, other than notes, bonds, obligation and securitiesBusiness which immediately following such acquisition becomes a Guarantor) which shall in the reasonable good faith judgment of the applicable Issuer’s Board of Directors will immediately constitute or be a part of a Related Business of the Company or the Parent Issuers or such Subsidiary Guarantor (if it continues to be a SubsidiaryGuarantor) immediately following such transactiontransaction (such assets or property, the “Related Business Assets”); or
(3) any combination of (1) or (2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture).
(c) All Net Cash Proceeds from an Event of Loss shall be used as follows: (x) first, the Issuers shall use such Net Cash Proceeds to the extent necessary to rebuild, repair, replace or restore the assets subject to such Event of Loss with comparable assets; and (y) then, to the extent any Net Cash Proceeds from an Event of Loss are not used as described in the preceding clause (x) all such remaining Net Cash Proceeds shall be reinvested or used as provided in clause (1), (2) or (3) of Section 4.13(b) hereof.
(d) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in clause (b)(11), (2) or (b)(23) of Section 4.13(b) hereof and the accumulated Net Cash Proceeds from any Event of Loss not applied as set forth in clause (x) or (y) of Section 4.13(c) hereof shall constitute "“Excess Proceeds." Within 30 days after ” Pending the date that the amount final application of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess any Net Cash Proceeds, the Company shall apply an amount Issuers may temporarily reduce revolving credit borrowings or otherwise invest or use for general corporate purposes the Net Cash Proceeds in any manner that is not prohibited by this Indenture; provided, however, that the Issuers may not use the Net Cash Proceeds (x) to make Restricted Payments other than Restricted Payments that are solely Restricted Investments or (y) to make Permitted Investments pursuant to clause (a) of the "Asset Sale Offer Amount"definition thereof.
(e) equal to When the Excess Proceeds equal or exceed $5,000,000, the Issuers shall offer to repurchase the repurchase of the Notes and such Notes, together with any other Indebtedness ranking on a parity with the Notes and with similar provisions requiring the Company Issuers to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "“Asset Sale Offer"”) at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) on the Asset Sale Purchase Date (as defined below) (the "“Asset Sale Offer Price"”) together with accrued and unpaid interest (and Liquidated Damages, if any, ) to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (Purchase Date. In order to effect the "Asset Sale Offer Period").
(d) Upon Offer, the Issuers shall promptly after expiration of the 360-day period following the Asset Sale that produced such Excess Proceeds mail to each Holder of Notes notice of the Asset Sale Offer Period(the “Asset Sale Notice”), offering to purchase the Company shall apply Notes on a date (the “Asset Sale Purchase Date”) that is no earlier than 30 days and no later than 60 days after the date that the Asset Sale Notice is mailed. On the Asset Sale Purchase Date, the Issuers shall apply an amount equal to the Excess Proceeds (the “Asset Sale Offer Amount Amount”) plus an amount equal to accrued and unpaid interest (and Liquidated Damages, if any, ) to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof of this Section 4.13 (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued and unpaid interest (and Liquidated Damages, if any)) to the Asset Sale Purchase Date. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company Issuers may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following Indenture. Following the consummation of each Asset Sale Offer in accordance with the provisions of this Section 4.13, the Excess Proceeds amount shall be reset to zero.
(ef) Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1) the Company Issuers and the Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets with a fair market value (or that result in gross proceeds) of less than $1,000,000, until the Parent may aggregate fair market value and their respective gross proceeds of the transactions excluded from the definition of Asset Sale pursuant to this clause (1) exceed $5,000,000;
(2) the Issuers and the Subsidiaries may, in the ordinary course of business, (ax) exchange gaming equipment or other FF&E for replacement items, (y) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (bz) liquidate Cash Equivalents;
(23) the Company Issuers and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1Article V hereof;
(34) the Company Issuers and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's Issuers’ business or the business of such Subsidiary, as applicable;
(45) the Company Issuers and the Parent may and the Guarantors Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent Issuers or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company Issuers and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and;
(7) the Company Issuers and the Parent Subsidiaries may exchange any property or assets for Related Business Assets (as defined in Section 4.13(b)(2) hereof); and
(8) the Issuers and their respective the Subsidiaries may make Permitted Investments pursuant to clause (d) in of the definition thereof and Restricted Investments permitted under that are not prohibited by Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses 4.9 hereof.
(b)(1g) or (b)(2) of this Section 4.13. 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 federal and state securities laws. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.13, the Company's Issuers’ compliance or the compliance of any of the Company's subsidiaries Subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's Issuers’ obligations under this Section 4.13. .
(h) If the payment date in connection with an Asset Sale Offer hereunder Purchase Date is on or after an interest payment Interest Record Date and on or before the associated Interest Payment Date, any accrued and unpaid interest Interest (and Liquidated Damages, if any) due on such Interest Payment Date shall be paid to the Person in whose name a Note is registered at the close of business on such Interest Record Date.
(i) The Trustee shall be entitled to receive in connection with an Asset Sale such documents, if any, required by the TIA.
Appears in 1 contract
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not not, and shall not permit any of their respective its Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their its property, business or assetsassets (other than cash or Cash Equivalents), including by merger or consolidation (in the case of a Subsidiary or Unrestricted Subsidiary)consolidation, and including any sale or other transfer or issuance of any Equity Interests (other than directors qualifying shares) of any SubsidiarySubsidiary of the Company, whether by the Company or the Parent or one of their respective Subsidiaries or through the issuance, sale or transfer of Equity Interests by one a Subsidiary of the Company's Subsidiaries or Unrestricted Subsidiary , and including (except as provided in clause (vi) of the third paragraph of this section) any sale Sale and leaseback transaction Leaseback Transaction (any of the foregoing, an "Asset Sale"), unless:
(1) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2a) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following after the date of such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal are applied to the Excess Proceeds to the repurchase optional redemption of the Notes Debentures in accordance with the terms of this Indenture and such other Indebtedness of the Company ranking on a parity with the Notes and Debentures from time to time outstanding with similar provisions requiring the Company to make an offer to purchase or redeem such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable lawof asset sales, if any) (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 Debentures and such other Indebtedness then outstanding or to the repurchase of the Debentures and such other Indebtedness pursuant to a cash offer (subject only to conditions required by applicable law, if any (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 Debentures and such other Indebtedness then outstanding) (the "Asset Sale Offer") at a purchase 104 price of 100% of the principal amount thereof (or accreted value the Accreted Value thereof, in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1) the Company or the Parent may and their respective Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(2) the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business made within 360 days of such SubsidiaryAsset Sale, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. 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 Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date.or
Appears in 1 contract
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or and the Parent Guarantors shall not not, and shall not permit any of their respective Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their property, business or assets, including by merger or consolidation (in the case of a Subsidiary or Unrestricted Subsidiaryof the Company), and including any sale or other transfer or issuance of any Equity Interests of any SubsidiarySubsidiary of the Company, whether by the Company or the Parent or one a Subsidiary of their respective Subsidiaries either or through the issuance, sale or transfer of Equity Interests by one a Subsidiary of the Company's Subsidiaries or Unrestricted Subsidiary , and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
unless (11)(a) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Offer Amount") shall be:
are applied (1i) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 within 270 days after the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the such Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase optional redemption of the Notes in accordance with the terms of this Indenture and such other Indebtedness of the Company ranking on a parity with the Notes and with similar provisions requiring the Company to make an offer to purchase redeem such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable lawfor asset sales, if any) (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 outstandingoutstanding or (ii) within 300 days after the date of such Asset Sale to the repurchase of the Notes and such other Indebtedness on a parity with the Notes and with similar provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds for asset sales pursuant to An acquisition of Notes pursuant to an Asset Sale Offer may be deferred until the accumulated Net Cash Proceeds from Asset Sales not applied to the uses set forth in (l)(a)(i) or (l)(b) of this Section 4.08 (the "Asset Sale OfferExcess Proceeds") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued exceed $5.0 million and unpaid interest and Liquidated Damages, if any, to the date of payment. Each each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) . Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds for general corporate purposes as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
. For purposes of (e2) of this Section 4.08, total consideration received means the total consideration received for such Asset Sales minus the amount of, (a) any 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 any Subsidiary (other than liabilities that are by their terms subordinate to the Notes or any guarantee thereof) that are assumed by the transferee of any such assets and from which the Company or such Subsidiary are unconditionally released from liability and assumed by a transferee and (b) property that within 30 days of such Asset Sale is converted into cash or Cash Equivalents, provided that such cash and Cash Equivalents shall be treated as Net Cash Proceeds attributable to the original Asset Sale for which such property was received. Notwithstanding, and without complying with, the other provisions of this Section 4.134.08:
(1i) the Company or the Parent may and their respective its Subsidiaries may, in the ordinary course of business, (a1) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b2) liquidate Cash Equivalents;
(2ii) the Company and the Parent may and their respective its Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with the Section 5.15.01 hereof;
(3iii) the Company and the Parent may and their respective its Subsidiaries may sell or dispose of damaged, worn out out, scrap or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of the Company or such Subsidiary, as applicable;
(4iv) the Company and the Parent may and the Guarantors its Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the its wholly-owned Guarantors;
(5v) the Company and the Parent may and their respective Subsidiaries mayits Subsidiaries, in the ordinary course of business, may convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;250,000; and
(6vi) the Company and the Parent may and their respective its Subsidiaries may surrender or waive contract rights or settle, release or surrender contract, tort or other litigation claims in the ordinary course of business any kind or grant Liens not prohibited by this Indenture; and
(7) . In addition to the foregoing and notwithstanding anything herein to the contrary, the Company will not, and will not permit any of its Subsidiaries to, directly or indirectly make any Asset Sale of any of the Parent may and their respective Subsidiaries may make Permitted Investments Equity Interests of any Subsidiary of the Company (other than to a Wholly-owned Subsidiary) except pursuant to clause (d) in an Asset Sale of all the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event Equity Interests of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13such Subsidiary. 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 Section 4.13paragraph, compliance by the Company's compliance Company or the compliance of any of the Company's its subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's its obligations under this Section 4.134.08. 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 shall 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 of the Notes who tender Notes pursuant to such Asset Sale Offer.
Appears in 1 contract
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not not, and shall not permit any of their respective Subsidiaries Restricted Subsidiary to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their its property, business or assets, including by merger or consolidation (in the case of a Restricted Subsidiary or Unrestricted Subsidiaryof the Company), and including any sale or other transfer or issuance of any Equity Interests Capital Stock of any Restricted Subsidiary, whether by the Company or the Parent or one a Restricted Subsidiary of their respective Subsidiaries either or through the issuance, sale or transfer of Equity Interests Capital Stock by one of the Company's Subsidiaries or Unrestricted Subsidiary a Restricted Subsidiary, and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
(1a) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or within 270 days after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% date of Adjusted Consolidated Net Tangible Assets, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal are applied to the Excess Proceeds optional redemption of the Notes in accordance with the terms of this Indenture or any other Indebtedness of the Company ranking on a parity with the Notes from time to time outstanding with similar provisions requiring the Company to make an offer to purchase or to redeem such Indebtedness with the proceeds of 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, or to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of paymentpayment or (ii) within 270 days following such Asset Sale, the Asset Sale Offer Amount is (A) invested (or committed, pursuant to a binding commitment subject only to reasonable, customary closing conditions, to be invested, and in fact is so invested, within an additional 90 days) in a Person, business, assets or property which in the good faith reasonable judgment of the Board of Directors will constitute or be a part of a Related Business of the Company or such Restricted Subsidiary (if it continues to be a Subsidiary) immediately following such transaction or (B) used to retire or repay Indebtedness of the Company and/or any Restricted Subsidiary that ranks pari passu with the Notes and/or the Guarantees or to permanently reduce the amount of such Indebtedness (provided that in the case of a revolving credit arrangement or similar arrangement that makes credit available, such commitment is permanently reduced by such amount).
(b) with respect to any Asset Sale or related series of Asset Sales involving securities, property or assets with an aggregate Determined Fair Market Value in excess of $500,000, at least 75% of the consideration for such Asset Sale or series of related Asset Sales consists of (x) cash or Cash Equivalents or (y) property or assets usable by the Company or any Restricted Subsidiary in the ordinary course of conduct of a Related Business; provided, that if the Fair Market Value of property or assets of the kind specified in this subclause (y) exceeds $5.0 million, then the Fair Market Value thereof shall be determined by a Third Party Evaluator; and provided, further, that the principal amount of the following shall be deemed to be cash for purposes of this clause (b): (i) any Indebtedness (as shown on the Company's or such Restricted Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any Restricted Subsidiary that is assumed or forgiven by the transferee of any such assets and (ii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 30 days of the closing of such Asset Sale (but in the case of this subclause (ii), only to the extent of the cash received),
(c) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to, such Asset Sale, and
(d) the Board of Directors of the Company determines in good faith that the Company or such Restricted Subsidiary, as applicable, receives at least Determined Fair Market Value for such Asset Sale. An acquisition of Notes pursuant to an Asset Sale Offer may be deferred until the accumulated Net Cash Proceeds from Asset Sales not applied to the uses set forth above (the "Excess Proceeds") exceeds $5.0 million. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement but in no event longer than 30 Business Days, except to the extent that a longer period is required by applicable law (the "Asset Sale Offer Period").
(d) Upon expiration . Not later than five Business Days after the termination of the Asset Sale Offer PeriodPeriod (the "Asset Sale Purchase Date"), the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Notes or any other Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Notes and any other Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued and unpaid interest and Liquidated Damages, if any). To the extent that the aggregate amount of Payment for any Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1) the Company or the Parent may and their respective Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(2) the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. Any Asset Sale Offer purchased 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 Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13same manner as interest payments are made. 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 shall 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 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 Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section 4.08 and the length of time the Asset Sale Offer shall remain open;
(b) the Asset Sale Offer Amount, the Asset Sale Offer Price and the Asset Sale Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest;
(d) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrete or accrue interest after the Asset Sale Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Company, a depositary, if appointed by the Company, or a paying agent at the address specified in the notice at least three days before the Asset Sale Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the Company, the depositary or the paying agent, as the case may be, receives, not later than the expiration of the Asset Sale Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the Company shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).
Appears in 1 contract
Sources: Indenture (PPC Publishing Corp)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not Issuer will not, and shall will not permit any of their respective Subsidiaries Restricted Subsidiary to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, consummate any Asset Disposition unless (i) the Issuer or such Restricted Subsidiary receives consideration at the time of their propertysuch Asset Disposition at least equal to the fair market value (including as to the value of all non cash consideration), business or assets, including as determined in good faith by merger or consolidation the Board of Directors of the Issuer of the shares and assets subject to such Asset Disposition and (ii) except in the case of a Subsidiary or Unrestricted Subsidiary)Tower Asset Exchange, and including any sale or other transfer or issuance of any Equity Interests of any Subsidiary, whether by the Company or the Parent or one of their respective Subsidiaries or through the issuance, sale or transfer of Equity Interests by one of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
(1) at least 75% of the total consideration for thereof received by the Issuer or such Asset Sale or series of related Asset Sales consists Restricted Subsidiary is in the form of cash or cash equivalents. Within 365 days after the receipt of any Net Available Cash Equivalentsfrom an Asset Disposition, the Issuer or the applicable Restricted Subsidiary may apply such Net Available Cash to: (A) prepay, repay, redeem or purchase Indebtedness (other than Disqualified Stock) of a Wholly Owned Subsidiary (provided, that the applicable Restricted Subsidiary also may prepay, repay, redeem or purchase its own outstanding Indebtedness) or Senior Indebtedness (in each case other than Indebtedness owed to the Issuer or an Affiliate of the Issuer); (B) make an offer with respect to the 2008 Notes to the extent required in the indenture governing the 2008 Notes; (C) acquire all or substantially all of the assets of an entity engaged in a Permitted Business; (D) acquire Voting Stock of an entity engaged in a Permitted Business from a Person that is not a Subsidiary of the Issuer; provided, that (x) after giving effect thereto, the Issuer or its Restricted Subsidiary owns a majority of such Voting Stock and (y) such acquisition is otherwise made in accordance with respect this Indenture, including, without limitation, Section 4.5; or (E) make a capital expenditure or acquire other long-term assets that are used or useful in a Permitted Business. To the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B), (C), (D) or (E), the Issuer shall make an Offer (as defined in Section 4.7(b)) to Holders of the Notes to purchase Notes pursuant to and subject to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine conditions set forth in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
paragraph (b) In of this Section 4.7. Notwithstanding the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such Asset Saleforegoing provisions, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) invested in assets Issuer and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds exceeds $10 million, which date its Restricted Subsidiaries shall not be prior required to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered any Net Available Cash in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient herewith except to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount Net Available Cash from all Asset Dispositions which are not applied in accordance with this covenant exceeds $10.0 million. Pending application of Notes and such other pari passu Indebtedness tendered Net Available Cash pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amountthis covenant, the Company may use any remaining such Net Available Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) Notwithstanding, and without complying with, invested in Permitted Investments. For the other provisions purposes of this Section 4.13:
(1) the Company or the Parent may and their respective Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(2) the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. 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 Section 4.134.7(a), the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall following are deemed to be paid to the Person in whose name a Note is registered at the close of business on such Record Date.cash:
Appears in 1 contract
Sources: Indenture (Spectrasite Holdings Inc)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not not, and shall not permit any of their respective Subsidiaries Restricted Subsidiary to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose ofand each Restricted Entity shall not, directly or indirectly, consummate any Asset Disposition unless:
(1) the Company or such Restricted Entity receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration thereof received by the Company or such Restricted Entity is in the form of cash, Temporary Cash Investments or Designated Noncash Consideration; provided, however, that the amount of any Designated Noncash Consideration received by the Company or any Restricted Entity in such Asset Disposition having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (2) at the time of determination, shall not exceed an amount equal to the greater of (x) $25 million and (y) 2.5% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; provided further that the amount of:
(a) any liabilities of the Company or any Restricted Entity of the Issuer (other than Subordinated Obligations) that are assumed by the transferee of any such assets,
(b) any notes or other obligations or other securities or assets received by the Company or such Restricted Entity of the Company from such transferee that are converted by the Company or such Restricted Entity of the Company into cash within 180 days of the receipt thereof (to the extent of the cash received), and
(c) any Indebtedness of a Restricted Entity (other than Subordinated Obligations) that is no longer a Restricted Entity as a result of the Asset Disposition shall be deemed to be cash for the purposes of this provision;
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or such Restricted Entity, as the case may be:
(A) first, to the extent the Company or such Restricted Entity elects, to acquire Additional Assets or improve Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that the Company shall have an additional six months to apply such Net Available Cash pursuant to this clause (A) if it shall have entered into a binding acquisition or purchase contract in respect of Additional Assets prior to the expiration of such one-year period; provided further that any Additional Assets acquired with any Net Available Cash of an Asset Disposition of Collateral shall be owned by the Company or a Guarantor and shall not be subject to any Liens other than Permitted Liens and the Company or such Guarantor, as the case may be, shall execute and deliver to the Collateral Agent such Security Documents or other instruments as shall be reasonably necessary to cause such property or assets to become subject to the Lien of the applicable Security Documents; provided further that if the Net Available Cash from any Asset Disposition of an FCC License, Industry Canada License or any similar telecommunications license or any Capital Stock of the FCC License Subsidiary, MSV Canada Inc. or any other entity holding a telecommunications license is in excess of $10.0 million, the Net Available Cash from such Asset Disposition may not be applied as provided in this clause (A) and shall be immediately applied as required in clause (b) below; and
(B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above:
(1) to the extent that such Net Available Cash is derived from an Asset Disposition of Collateral to make an offer to the holders of the Notes (and to holders of other Additional Secured Obligations that require such an offer) to purchase Notes (and such other Additional Secured Obligations) pursuant to and subject to the conditions contained in this Indenture; provided that such offer to holders of Notes is for no less than the Noteholders pro rata amount of such Net Available Cash (based on the Accreted Value of the Notes outstanding and the principal amount (or accreted value if issued with discount) of such Additional Secured Obligations); and
(2) to the extent that such Net Available Cash is not derived from any Asset Disposition of Collateral, to make an offer to holders of the Notes (and to holders of other secured Pari Passu Indebtedness that requires such an offer) to purchase Notes (and such other secured Pari Passu Indebtedness that require such an offer) pursuant to and subject to the conditions contained in this Indenture; provided, that such offer to holders of Notes is for no less than the Noteholders pro rata amount of such Net Available Cash (based on the Accreted Value of the Notes outstanding and the principal amount (or accreted value if issued with discount) of such Additional Secured Obligations); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (3)(B) above, the Issuers or such Restricted Entity shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; provided, however, that the prior proviso shall not affect the ability of the Company of the Restricted Entities to incur Indebtedness under Section 4.06(b). Pending application of Net Available Cash that is not derived from Collateral pursuant to this covenant, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness. Pending application of Net Available Cash that is derived from Collateral pursuant to this covenant, such Net Available Cash shall be deposited into the Collateral Account.
(b) In the event of an Asset Disposition that requires the Issuers to make an Offer to purchase the Notes (and other Indebtedness) pursuant to Section 4.10(a)(3)(B) the Issuers shall purchase Notes tendered pursuant to an Offer by the Issuers for the Notes (and such other Indebtedness) (the “Offer”) at a purchase price of 100% of their propertyAccreted Value (such other Indebtedness at a purchase price of 100% of its principal amount or, business or assetsin the event such other Indebtedness was issued with significant original issue discount, including 100% of the accreted value thereof) without premium, plus accrued but unpaid interest (or, in respect of such other Indebtedness, such lesser price, if any, as may be provided for by merger or consolidation the terms of such Indebtedness) in accordance with the procedures set forth in Section 4.10(c). If the aggregate purchase price of the Notes (and such other Indebtedness) tendered exceeds the Net Available Cash allotted to their purchase, the Trustee will select the Notes and such other Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of a Subsidiary the Notes will be denominations of $2,000 principal amount at maturity or Unrestricted Subsidiarymultiples thereof. The Company shall not be required to make such an Offer to purchase Notes (and other Indebtedness) pursuant to Section 4.10(a)(3)(B) if the Net Available Cash available therefrom is less than $15.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). To the extent that the aggregate amount of Notes and other Indebtedness tendered is less than the Net Available Cash required to be used to make an Offer to the holders of Notes and such Indebtedness, the Company may use such excess Net Available Cash for any other purpose not prohibited by this Indenture.
(c) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer pursuant to Section 4.10(a)(3)(B), the Company shall deliver to the Trustee and send, by first-class mail to each holder, a written notice stating that the holder may elect to have its Notes purchased by the Issuers either in whole or in part (subject to prorating as described in Section 4.10(b) in the event the Offer is oversubscribed) in integral multiples of $2,000 principal amount at maturity, at the applicable purchase price set forth in Section 4.10(b). The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the “Purchase Date”) and shall contain such information concerning the business of the Issuers which the Issuers in good faith believe will enable such holders to make an informed decision and all instructions and materials necessary to tender Notes pursuant to the Offer, together with the information contained in clause (3).
(1) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officer’s Certificate as to (A) the amount of the Offer (the “Offer Amount”), including information as to any sale other Additional Secured Obligations or secured Pari Passu Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.10(a) and (b). On such date (i) to the extent the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made is not derived from Collateral, the Company shall irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section and (ii) to the extent the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made is derived from Collateral, the Company shall irrevocably deposit in the Collateral Account an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other transfer Additional Secured Obligations or issuance Secured Pari Passu Indebtedness, the portion of the deposit described in the preceding sentence that is applicable to such Additional Secured Obligations or secured Pari Passu Indebtedness may be made with any Equity Interests other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of any Subsidiarythe period for which the Offer remains open (the “Offer Period”), whether the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Offer Amount applicable to the Notes, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.10.
(2) Holders electing to have Notes purchased shall be required to surrender the Notes, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Parent Company receives not later than one Business Day prior to the Purchase Date, a facsimile transmission or one letter setting forth the name of their respective Subsidiaries the holder, the principal amount at maturity of the Notes which were delivered for purchase by the holder and a statement that such holder is withdrawing his election to have such Notes purchased. Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(3) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officer’s Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section. Notes shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the issuancesurrendering holder.
(d) The Company will not, sale or transfer of Equity Interests by one of the Company's Subsidiaries or Unrestricted and will not permit any Restricted Subsidiary to, and including each Restricted Entity will not, engage in any sale and leaseback transaction (any of the foregoing, an "Asset Sale")Swaps, unless:
(1) at least 75% the time of the total consideration for entering into such Asset Sale or series of related Swap and immediately after giving effect to such Asset Sales consists of cash or Cash Equivalents; providedSwap, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on as a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1) the Company or the Parent may and their respective Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalentsconsequence thereof;
(2) the Company and Related Business Assets that are the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose subject of assets pursuant to and in accordance with Section 5.1such Asset Swap have a substantially comparable fair market value;
(3) in the event such Asset Swap involves the transfer by the Company and or any Restricted Entity of assets having an aggregate fair market value, as determined by the Parent may and their respective Subsidiaries may sell or dispose Board of damagedDirectors of the General Partner in good faith, worn out or other obsolete personal property in excess of $10 million, the ordinary course terms of business so long as such property is no longer necessary for Asset Swap have been approved by a majority of the proper conduct members of the Board of Directors of the Company's or the Parent's business or the business of such Subsidiary, as applicable;; and
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;cash received shall be applied in accordance with Section 4.10(a)(3).
(5e) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. 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 Section 4.134.10, the Company's compliance or Issuers will comply with the compliance of any of the Company's subsidiaries with such applicable securities laws and regulations shall and will not in be deemed to have breached its obligations hereunder and of itself cause a breach of the Company's obligations under this Section 4.13. If the payment date in connection 4.10 by virtue of its compliance with an Asset Sale Offer hereunder is on such securities laws 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Dateregulations.
Appears in 1 contract
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not not, and shall not permit any of their respective its Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their its property, business or assets, including by merger or consolidation (in the case of a Subsidiary Guarantor or Unrestricted Subsidiarya Subsidiary of the Company), and including any sale or other transfer or issuance of any Equity Interests Capital Stock of any SubsidiarySubsidiary of the Company, whether by the Company or the Parent or one a Subsidiary of their respective Subsidiaries either or through the issuance, sale or transfer of Equity Interests Capital Stock by one a Subsidiary of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and leaseback transaction Company (any of the foregoing, an "Asset Sale"), unless:
unless (1i) at least 75% the Board of Directors of the total Company determines in good faith that the Company or such Subsidiary, as applicable, receives consideration for at the time of such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect at least equal to the sale of one or more hotel properties, up to 75% Fair Market Value of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property assets or properties sold;
Capital Stock issued or sold or otherwise disposed of, (2ii) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur as a consequence of (after giving effect, on a pro forma basis, to to) such Asset Sale; and
, and (3iii) the Parent and the Company determine in good faith that at least 75% of the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds therefor received by the Company or such Subsidiary is in the Parent form of Cash or Cash Equivalents; provided that for purposes of this provision the amount of (A) any Indebtedness (other than Securities) that is required to be repaid or assumed (and is either repaid or assumed by the transferee of the related assets) by virtue of such Asset Sale and which is secured by a Lien on the property or assets sold and (B) any securities or other obligations received by the Company or any of their respective Subsidiaries such Subsidiary from such transferee that are immediately converted by the Company or such Subsidiary into Cash (or as to which the Company or such Subsidiary has received at or prior to the consummation of the Asset SaleSale a commitment (which may be subject to customary conditions) from a nationally recognized investment, plus merchant or commercial bank to convert into Cash within 90 days of the consummation of such Asset Sale and which are thereafter actually converted into Cash within such 90-day period) will be deemed to be Cash. Within 365 days after the receipt of any Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such from an Asset Sale, the Company may invest or commit such Net Cash Proceeds, pursuant to a binding commitment subject only to reasonable, customary closing conditions, to be invested (and providing such Net Cash Proceeds therefrom are, in fact, so invested, within an additional 180 days) in (the "Asset Sale Amount"x) shall be:
(1) invested in fixed assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation obligations and securities) which shall in the good faith reasonable judgment of the Board of Directors of the Company will immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2y) used to retire Indebtedness incurred under Permitted Mortgage Investments or (z) a controlling interest in the Credit Agreement and to permanently reduce the amount Capital Stock of an entity engaged in a Related Business; provided, that concurrently with an Investment specified in clause (z), such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereofentity becomes a Subsidiary Guarantor. Pending the final application of any such Net Cash ProceedsProceeds as described above, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated . Any Net Cash Proceeds from Asset Sales that are not applied or invested as set forth provided in the first sentence of this paragraph (b)(1including any Net Cash Proceeds which were committed to be invested as provided in such sentence but which are not in fact invested within the time period provided) or (b)(2) shall will be deemed to constitute "Excess Proceeds." Within 30 days after Notwithstanding the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase foregoing provisions of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) Notwithstanding, and without complying with, the other provisions of this Section 4.13prior paragraph:
(1i) the Company or the Parent may and their respective its Subsidiaries may, in the ordinary course of business, (a) convey, sell, lease, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalentsbusiness;
(2ii) the Company and the Parent may and their respective its Subsidiaries may convey, sell, lease, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1the provisions of Article V;
(3iii) the Company and the Parent may and their respective its Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of the Company or such Subsidiary, as applicable;
(4iv) the Company and the Parent its Subsidiaries may consummate any sale or series of related sales (including, without limitation, sale and the Guarantors may convey, sell, transfer, assign or otherwise dispose leaseback transactions) of assets to or properties of the Company or the Parent or any and its Subsidiaries having a Fair Market Value of the Guarantors;less than $2.0 million; and
(5v) the Company and the Parent its Subsidiaries may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of exchange assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) held by the Company or a Subsidiary for one or more hotels and/or one or more Related Businesses of any Person or entity owning one or more hotels and/or one or more Related Businesses; provided, that the Board of Directors of the Company has determined that the terms of any exchange are fair and reasonable and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in Fair Market Value of the ordinary course of business or grant Liens not prohibited assets received by this Indenture; and
(7) the Company and are approximately equal to the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. Any Asset Sale Offer shall be made in compliance with all applicable laws, rules, and regulations, including, if applicable, Regulation 14E Fair Market Value 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 Section 4.13, assets exchanged by the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date.
Appears in 1 contract
Sources: Indenture (HMH Properties Inc)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not not, and shall not permit any of their respective its Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their its property, business or assets, including by merger or consolidation (in other than a merger or consolidation of the case of a Subsidiary or Unrestricted SubsidiaryCompany), and including any sale or other transfer or issuance of any Equity Interests of any SubsidiarySubsidiary of the Company, whether by the Company or the Parent or one a Subsidiary of their respective Subsidiaries either or through the issuance, sale or transfer of Equity Interests by one a Subsidiary of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and leaseback transaction Company (any of the foregoing, an "Asset Sale"), unless:
unless (1l)(a) within 210 days after the date of such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Offer Amount") are applied to the optional redemption of the Securities in accordance with the terms hereof or to the repurchase of Securities pursuant to a cash offer (the "Asset Sale Offer") to repurchase Securities at a purchase price (the "Asset Sale Offer Price") of 100% of principal amount, plus accrued interest to the date of payment, made within 180 days of such Asset Sale or (b) within 180 days following such Asset Sale, the Asset Sale Offer Amount is (i) invested (or committed to be invested, and in fact is so invested, within an additional 90 days) in assets and property other than notes, bonds, obligation and securities (except in connection with the acquisition of a wholly owned Subsidiary) which in the good faith reasonable judgment of the Board will immediately constitute or be a part of a Related Business of the Company or such Subsidiary immediately following such transaction or (ii) used to permanently reduce Senior Debt (PROVIDED that in the case of a revolver or similar arrangement that makes credit available, such commitment is also permanently reduced by such amount), (2) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash Cash, Cash Equivalents or Cash Equivalents; providedPermitted Investments, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(23) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma PRO FORMA basis, to to, such Asset Sale; and
, and (34) the Parent and Board of Directors of the Company determine determines in good faith that the consideration received by the Parent, the Company or their respective Subsidiariessuch Subsidiary, as applicable, equals the receives fair market value for such Asset Sale.. Notwithstanding the foregoing provisions of the prior paragraph:
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on the Company and its Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign or after otherwise dispose of inventory acquired and held for resale in the Issue Date and ordinary course of business;
(ii) within the 360-day period proceeding such Asset SaleCompany and its Subsidiaries may convey, exceed 10% sell, transfer, assign or otherwise dispose of Adjusted Consolidated Net Tangible Assetsassets pursuant to and in accordance with the limitation on mergers, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:sales or consolidations provisions in this Indenture;
(1iii) invested the Company and its Subsidiaries may sell or dispose of damaged, worn out or other obsolete property in assets and the ordinary course of business so long as such property (except in connection with is no longer necessary for the acquisition proper conduct of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business the business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, oras applicable;
(2iv) used the Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or any of its wholly owned Subsidiaries; and
(v) the Parent Company and its Subsidiaries may temporarily reduce revolving credit borrowings convey, sell, transfer, assign or otherwise invest the Net Cash Proceeds dispose of assets (in addition to those transactions described in clause (i) through (iv)of this Section 4.13) with an aggregate fair market value of $5 million in any manner that is not prohibited by this Indenture.
(c) The fiscal year. An Asset Sale Offer may be deferred until the accumulated Net Cash Proceeds from Asset Sales not applied as to the uses set forth in clause (b)(1l) or of the first paragraph of this Section 4.10 (b)(2) shall constitute the "Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds ") exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale 15 million and that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) . Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness Securities properly tendered in accordance with the provisions hereof (on a pro rata PRO RATA basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness Securities so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if anyinterest). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness Securities tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds for general corporate purposes as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
. For purposes of clause (e2) Notwithstanding, and without complying with, of the other provisions first paragraph of this Section 4.13:
(1) 4.13 total consideration received means the Company or total consideration received for such Asset Sales minus the Parent may and their respective Subsidiaries may, in the ordinary course amount of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business Senior Debt assumed by a transferee and (b) liquidate property that within 30 days of such Asset Sale is converted into Cash or Cash Equivalents;
(2) the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested invested, used for prepayment of Senior Debt, or used to repurchase Securities, all within the period and as otherwise provided above in clauses (b)(1clause 1(a) or (b)(21(b) of the first paragraph of this Section 4.13. Notice of an Asset Sale Offer will be sent 20 Business Days prior to the close of business on the third Business Day prior to the date set by the Company to repurchase Securities pursuant to this Section 4.13 (the "Purchase Date"), by first-class mail, by the Company to each Holder at its registered address, with a copy to the Trustee. The notice to the Holders will contain all information, instructions and materials required by applicable law. The notice, which (to the extent consistent with this Indenture) shall govern the terms of the Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant to such notice and this Section 4.13;
(2) the Asset Sale Offer, the Asset Sale Offer Price (including the amount of accrued and unpaid interest), and the Purchase Date, which Purchase Date shall be on or prior to 45 Business Days following the Excess Proceeds Date;
(3) that any Security or portion thereof not tendered or accepted for payment will continue to accrue interest;
(4) that, unless the Company defaults in depositing Cash with the Paying Agent in accordance with the provisions of this Section 4.13, any Security, or portion thereof, accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Security, or portion thereof, purchased pursuant to an Asset Sale Offer will be required to surrender the Security, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Security completed, to the Paying Agent (which may not for purposes of this Section 4.13, notwithstanding anything in this Indenture to the contrary, be the Company or any Affiliate of the Company) at the address specified in the notice prior to the close of business on the third Business Day prior to the Purchase Date;
(6) that Holders will be entitled to withdraw their elections, in whole or in part, if the Paying Agent receives, up to the close of business on the third Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities the Holder is withholding and a statement that such Holder is withdrawing his election to have such principal amount of Securities purchased;
(7) that if Securities in a principal amount in excess of the principal amount of Securities to be acquired pursuant to the Asset Sale Offer are tendered and not withdrawn, the Company shall purchase Securities on a PRO RATA basis (with such adjustments as may be deemed appropriate by the Company so that only Securities in denominations of $1,000 or integral multiples of $1,000 shall be acquired);
(8) that Holders whose Securities were purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; and
(9) a brief description of the circumstances and relevant facts regarding such Asset Sales. On or before the Purchase Date, the Company shall (i) accept for payment Securities or portions thereof properly tendered pursuant to the Asset Sale Offer on or before the third Business Day prior to the Purchase Date (on a PRO RATA basis if required pursuant to paragraph (7) hereof) and (ii) deposit with the Paying Agent Cash sufficient to pay the Asset Sale Offer Price for all Securities or portions thereof so tendered and accepted plus accrued and unpaid interest thereon to the Purchase Date. On the Purchase Date, the Company shall deliver to the Trustee Securities so accepted together with an Officers' Certificate stating the Securities or portions thereof being purchased by the Company. The Paying Agent shall on the Purchase Date mail or deliver to Holders of Securities so accepted payment in an amount equal to the Asset Sale Offer Price for such Securities (together with accrued and unpaid interest), and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Security equal in principal amount to any unpurchased portion of the Security surrendered. Any Security not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company agrees that 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 , and any provisions of this Indenture which conflict with such laws shall be deemed to be superseded by the provisions of any securities laws or regulations conflict with the provisions of this Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Datelaws.
Appears in 1 contract
Sources: Indenture (Universal Outdoor Inc)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent Issuers shall not not, and shall not permit any of their respective Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their property, business or assets, including by merger or consolidation (in the case of a Subsidiary or Unrestricted Subsidiaryone of the Subsidiaries), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiaryof the Subsidiaries, whether by the Company or the Parent Issuers or one of their respective Subsidiaries or through the issuance, sale or transfer of Equity Interests by one any of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and sale-leaseback transaction (any of the foregoing, an "“Asset Sale"), ”) unless:
(1) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;,
(2) no Default with respect to any Asset Sale or Event related series of Default shall have occurred and be continuing at the time ofAsset Sales involving a conveyance, sale, transfer, assignment or would occur after giving effectother disposition of securities, on a pro forma basisproperty or assets with an aggregate fair market value in excess of $2,000,000, to such Asset Sale; and
(3) the Parent and the Company determine management determines in reasonable good faith that the consideration received by the Parent, the Company Issuers shall receive or their respective Subsidiariessuch Subsidiary shall receive, as applicable, equals the fair market value for such Asset Sale, and
(3) with respect to any Asset Sale or related series of Asset Sales involving a conveyance, sale, transfer, assignment or other disposition of securities, property or assets with an aggregate fair market value in excess of $5,000,000, the Issuers’ Board of Directors determines in reasonable good faith that the Issuers will receive or such Subsidiary will receive, as applicable, fair market value for such Asset Sale. For purposes of clause (1) of this Section 4.13(a), the following shall be deemed to constitute cash or Cash Equivalents: (a) the amount of any Indebtedness or other liabilities of the Issuers or such Subsidiary (other than Indebtedness or liabilities that are by their terms subordinated to the Notes) that are assumed by the transferee of any such assets so long as the documents governing such liabilities provide that there is no further recourse to the Issuers or any of their Subsidiaries with respect to such liabilities and (b) fair market value of any marketable securities, currencies, notes or other obligations received by either Issuer or any such Subsidiary in exchange for any such assets that are converted into cash or Cash Equivalents within 90 days after the consummation of such Asset Sale, provided, that such cash and Cash Equivalents shall be treated as Net Cash Proceeds attributable to the original Asset Sale for which such property was received.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 Within 390 days following such Asset Sale, the Net Cash Proceeds therefrom (the "“Asset Sale Amount"”) shall be:
(1) (i) used to retire Purchase Money Indebtedness secured by the asset which was the subject of the Asset Sale, or (ii) used to retire and permanently reduce Indebtedness incurred under any Credit Agreement or the Wornick Notes; provided that in the case of a revolver or similar arrangement that makes credit available, such commitment is permanently reduced by such amount; or
(2) invested in assets and or property (other than notes, bonds, obligations and securities, except in connection with the acquisition of a Subsidiary which is a Guarantor Person in a Related Business, other than notes, bonds, obligation and securitiesBusiness which immediately following such acquisition becomes a Subsidiary of Holding) which shall in the reasonable good faith judgment of the Issuers’ Board of Directors will immediately constitute or be a part of a Related Business of the Company or the Parent Holding or such Subsidiary (if it continues to be a SubsidiarySubsidiary of Holding) immediately following such transaction, ; or
(3) any combination of (1) or (2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture).
(c) All Net Cash Proceeds from an Event of Loss shall be used as follows: (x) first, the Issuers shall use such Net Cash Proceeds to the extent necessary to rebuild, repair, replace or restore the assets subject to such Event of Loss with comparable assets; and (y) then, to the extent any Net Cash Proceeds from an Event of Loss are not used as described in the preceding clause (x) all such remaining Net Cash Proceeds shall be reinvested or used as provided in clause (1), (2) or (3) of Section 4.13(b).
(d) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in clause (b)(11), (2) or (b)(23) of Section 4.13(b) and the accumulated Net Cash Proceeds from any Event of Loss not applied as set forth in clause (x) or (y) of Section 4.13(c) shall constitute "“Excess Proceeds." Within 30 days after ” Pending the date final application of any Net Cash Proceeds, Holding or one of its Subsidiaries may temporarily reduce revolving credit borrowings or otherwise invest or use for general corporate purposes (other than Restricted Payments that are not solely Restricted Investments) the Net Cash Proceeds in any manner that is not prohibited by this Indenture; provided, however, that the amount Issuers may not use the Net Cash Proceeds to make Restricted Payments other than Restricted Payments that are solely Restricted Investments or to make Permitted Investments pursuant to clause (a) of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount definition thereof.
(the "Asset Sale Offer Amount"e) equal to When the Excess Proceeds equal or exceed $5,000,000, the Issuers shall offer to repurchase the repurchase of the Notes and such Notes, together with any other Indebtedness ranking on a parity with the Notes and with similar provisions requiring the Company Issuers to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (pro ), pro-rata in proportion to the respective principal amounts of such Indebtedness (or accreted values in the case of Indebtedness issued with an original issue discount) of and the Notes and such other Indebtedness then outstanding) (the "“Asset Sale Offer"”) at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "“Asset Sale Offer Price"”) together with accrued and unpaid interest Interest (and Liquidated Damages, if any, ) to the date of payment. Each In order to effect the Asset Sale Offer Offer, the Issuers shall remain open for 20 Business Days promptly after expiration of the 390-day period following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration that produced such Excess Proceeds mail to each Holder of Notes notice of the Asset Sale Offer Period(the “Asset Sale Notice”), offering to purchase the Company shall apply Notes on a date (the “Asset Sale Purchase Date”) that is no earlier than 30 days and no later than 60 days after the date that the Asset Sale Offer Amount plus Notice is mailed. On the Asset Sale Purchase Date, the Issuers shall apply an amount equal to accrued and unpaid interest and Liquidated Damages, if any, the Excess Proceeds (the “Asset Sale Offer Amount”) to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof of this Section 4.13 (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and unpaid Interest (and Liquidated Damages, if any)) to the date of payment; provided, however, if on the Asset Sale Purchase Date, The Wornick Company is not able to make a Restricted Payment under the Wornick Indenture in an amount equal to the Asset Sale Offer Amount required to be used hereunder to make an Asset Sale Offer, then the Issuers shall apply an amount equal to the maximum Restricted Payment amount that may be made by The Wornick Company under the Wornick Indenture on such date ratably to the Indebtedness properly tendered pursuant to this Section 4.13. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company Issuers may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following Indenture. Following the consummation of each Asset Sale Offer in accordance with the provisions of this Section 4.13, the Excess Proceeds amount shall be reset to zero.
(ef) Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1) the Company or the Parent Issuers may and their respective Subsidiaries may, in the ordinary course of business, (ax) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and business, (by) liquidate Cash EquivalentsEquivalents and (z) discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise thereof;
(2) the Company and the Parent Issuers may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1Article V;
(3) the Company and the Parent Issuers may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's Issuers’ business or the business of such Subsidiary, as applicable;
(4) the Company Issuers and the Parent may and the Guarantors their Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets to the Company Issuers or the Parent or to any of the Guarantorstheir Subsidiaries;
(5) the Company and the Parent Issuers may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and;
(6) the Issuers may and their Subsidiaries may exchange any property or assets for property or assets of the type set forth in Section 4.13(b)(2);
(7) the Issuers’ Subsidiaries may issue Equity Interests to the Issuers, to The Wornick Company and or to any Subsidiary of The Wornick Company;
(8) the Parent Issuers may and their respective Subsidiaries may make Permitted Investments pursuant to clause clauses (d) and (k) in the definition thereof and Restricted Investments permitted under that are not prohibited by Section 4.9;
(9) the Issuers may and their Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets with a fair market value (or that result in gross proceeds) of less than $1,000,000, until the aggregate fair market value and gross proceeds of the transactions excluded from the definition of Asset Sale pursuant to this clause (9) exceed $5,000,000; and
(10) the Issuers may and their Subsidiaries may grant Permitted Liens. Notwithstanding anything to the contrary set forth in this Indenture, Holding shall not be permitted to sell, assign, transfer or otherwise convey any of its Equity Interests in The Wornick Company, including by consolidation with or merger with or into another Person. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses clause (b)(11), (2) or (b)(23) of this Section 4.13. 4.13(b).
(g) 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 federal and state securities laws. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.13, the Company's Issuers’ compliance or the compliance of any of the Company's subsidiaries their Subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's Issuers’ obligations under this Section 4.13. .
(h) If the payment date in connection with an Asset Sale Offer hereunder Purchase Date is on or after an interest payment Interest Record Date and on or before the associated Interest Payment Date, any accrued and unpaid interest Interest (and Liquidated Damages, if any) due on such Interest Payment Date shall be paid to the Person in whose name a Note is registered at the close of business on such Interest Record Date.
(i) The Trustee shall be entitled to receive in connection with an Asset Sale such documents, if any, required by the TIA.
Appears in 1 contract
Sources: Indenture (TWC Holding Corp.)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company Subject Entity will not, and will not cause or the Parent shall not and shall not permit any of their respective its Subsidiaries to, in one transaction or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their respective property, business or assetsassets (whether owned on the date of this Indenture or thereafter acquired), including including, without limitation, by merger or consolidation (in the case of or by a Subsidiary or Unrestricted Subsidiary)Sale and Leaseback Transaction and including, and including without limitation, any sale or other transfer or issuance of any Equity Interests Capital Stock (other than directors qualifying shares) of any Subsidiary, whether by the Company or the Parent or one of their respective Subsidiaries or through the issuance, sale or transfer of Equity Interests by one Subsidiary of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and leaseback transaction Subject Entity, as the case may be (any of the foregoing, an "Asset Sale"), unless:
unless (1) at least 75within 360 days following such Asset Sale (a) the Net Cash Proceeds received from such Asset Sale are (i) (x) used to purchase one or more businesses or to purchase more than 50% of the total consideration for such Asset Sale or series outstanding Capital Stock of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of a person operating one or more hotel propertiesbusinesses, up to 75% which person becomes a Subsidiary of the consideration may consist of Indebtedness of the purchaser of Subject Entity concurrently with such hotel properties purchase, (y) used to make capital expenditures or to purchase inventory or (z) used to acquire other assets, in each case so long as such Indebtedness business or businesses, capital expenditures or assets will constitute, be a part of or be used in a Related Business (provided that, in the case of the sale of a supermarket, the Subject Entity may deem the Net Cash Proceeds therefrom to have been applied in accordance with this clause (i) to the extent of any capital expenditures made by the Subject Entity or any of its Subsidiaries to acquire or construct a replacement supermarket in the same general vicinity of the supermarket sold within 360 days preceding the date of the Asset Sale) or (ii) used to retire Senior Debt and to permanently reduce the amount of such Senior Debt outstanding (provided that in the case of a revolving credit facility or similar arrangement that makes credit available, the commitment thereunder is secured also permanently reduced by such amount) and (b) the Net Cash Proceeds of such Asset Sale not applied as provided in clause (a) (the "Excess Proceeds") are applied to the optional redemption of the Securities in accordance with the terms of this Indenture or to the repurchase of the Securities pursuant to an irrevocable, unconditional cash offer (the "Asset Sale Offer") to repurchase Securities at a first priority Lien on purchase price of 100% of the hotel property or properties sold;
principal amount (the "Asset Sale Offer Price"), plus accrued interest to the date of payment; (2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
and (3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company Subject Entity or their respective Subsidiariessuch Subsidiary, as applicable, equals shall have received Fair Market Value for the fair market value for property, business or assets, as applicable, disposed of in such Asset Sale.
(b) In ; provided, however, that the event and Subject Entity shall have the right to exclude from the extent that immediately following foregoing provisions any Asset Sale subsequent to the Net Cash Proceeds received Issue Date, the proceeds of which are derived from a Sale and Leaseback Transaction of a supermarket and/or related assets or equipment which is acquired or constructed by the Company Subject Entity or a Subsidiary of the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after Subject Entity subsequent to the Issue Date Date, so long as any such Sale and (ii) Leaseback Transaction occurs within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 365 days following such Asset Saleacquisition or the completion of such construction, as the case may be; and, provided, further, that clauses (2) and (3) above shall not apply to the sale or disposition of assets as a result of a foreclosure (or a secured party taking ownership of such assets in lieu of foreclosure) or as a result of an involuntary proceeding in which the Subject Entity cannot, directly or through its Subsidiaries, direct the type of proceeds received and, in such event, the 360 day period referred to in clause (1) above shall commence on the date Net Cash Proceeds therefrom are received (the "Asset Sale Amount") shall be:
(1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or separate 360 day period commencing on each day any such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The are received). An Asset Sale Offer may be deferred until the accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount 15,000,000 (the "Asset Sale Offer Amount") equal to date on which the Excess Proceeds exceed $15,000,000 being herein referred to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (as the "Asset Sale OfferExcess Proceeds Date") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each each Asset Sale Offer shall remain open for not less than 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) . Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount Excess Proceeds plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness Securities properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is Excess Proceeds are insufficient to purchase all Indebtedness Securities so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if anyinterest). To the extent that the aggregate amount Holders of Notes and Securities do not tender Securities in connection with any such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer AmountOffer, the Company remaining Excess Proceeds may use be applied in any remaining Net Cash Proceeds as otherwise permitted manner not prohibited by this Indenture and following the consummation amount of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
. Pending the utilization of any Net Cash Proceeds in the manner (eand within the time period) Notwithstanding, and without complying withdescribed in this paragraph, the other Subject Entity may use any such Net Cash Proceeds to repay revolving loans under any Credit Agreement (provided that such revolving loans constitute Senior Debt) and, in that event, anything in the Indenture to the contrary notwithstanding, the Subject Entity shall not be required to reduce the commitment under the related revolving credit facility as a result of such repayments of revolving loans except to the extent the Subject Entity deems such Net Cash Proceeds to have been used to retire Senior Debt as contemplated by clause (1)(a)(ii) of the first sentence of this paragraph. In the event of a transaction as a result of which a Subsidiary Guarantor will be released from its Guarantee as provided in Section 11.4(c), then, anything in this Indenture to the contrary notwithstanding, such transaction shall be deemed to be an Asset Sale and shall be subject to and shall only be made in compliance with the foregoing covenant. Notwithstanding the provisions of the first paragraph of this Section 4.13, the following transactions shall not be deemed Asset Sales:
(1A) the Company any sale, lease, sublease, conveyance, assignment, transfer or the Parent may and their respective Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose other disposition of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(2) the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims made in the ordinary course of business or grant Liens not prohibited (B) any sale, lease, sublease, conveyance, assignment, transfer or other disposition, in one transaction or a series of related transactions, of any other property or assets (other than Capital Stock of a Subsidiary of the Subject Entity) with an aggregate Fair Market Value (as determined in good faith by this Indenture; and
(7) the Company and Board of Directors of the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2Subject Entity) of this Section 4.13. Any Asset Sale Offer shall be made in compliance with all applicable laws, rules, less than $1,000,000; (ii) any merger or consolidation of a Guarantor that is governed by 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 complies with the provisions of this Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date.described in
Appears in 1 contract
Sources: Indenture (Quality Food Centers Inc)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent Issuers shall not and the Guarantors shall not not, and neither the Issuers nor the Guarantors shall permit any of their respective the Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of the Issuers’ or their property, business or assets, including by merger or consolidation (in the case of a Subsidiary Guarantor or Unrestricted Subsidiaryone of the Subsidiaries), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiaryof the Subsidiaries, whether by the Company Issuers or any of the Parent or one of their respective Subsidiaries or through the issuance, sale or transfer of Equity Interests by one any of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and sale-leaseback transaction (any of the foregoing, an "“Asset Sale"), ”) unless:
(1) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;and
(2) no Default or Event the Board of Default shall have occurred and be continuing at Directors of the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine applicable Issuer determines in reasonable good faith that the consideration received by the Parent, the Company such Issuer or their respective Subsidiariessuch Subsidiary will receive, as applicable, equals the fair market value for such Asset Sale. For purposes of clause (1) of this Section 4.13(a), the following shall be deemed to constitute cash or Cash Equivalents: (a) the amount of any Indebtedness or other liabilities (other than Indebtedness or liabilities that are by their terms subordinated to the Notes and the Guarantees) of the Issuers or such Subsidiary that are assumed by the transferee of any such assets so long as the documents governing such liabilities provide that there is no further recourse to the Issuers or any of the Subsidiaries with respect to such liabilities and (b) fair market value of any marketable securities, currencies, notes or other obligations received by the Issuers or any such Subsidiary in exchange for any such assets that are converted into cash or Cash Equivalents within 30 days after the consummation of such Asset Sale, provided, that such cash and Cash Equivalents shall be treated as Net Cash Proceeds attributable to the original Asset Sale for which such property was received.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within Within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "“Asset Sale Amount") ”), if used, shall be:
(1) (i) used to retire Purchase Money Indebtedness secured by the asset which was the subject of the Asset Sale, or (ii) used to retire and permanently reduce Indebtedness incurred under the Credit Agreement and other Senior Debt; provided, that in the case of a revolver or similar arrangement that makes credit available, such commitment is permanently reduced by such amount; or
(2) invested in assets and property (other than notes, bonds, obligations and securities, except in connection with the acquisition of a Subsidiary which is a Guarantor Person in a Related Business, other than notes, bonds, obligation and securitiesBusiness which immediately following such acquisition becomes a Guarantor) which shall in the reasonable good faith judgment of the applicable Issuer’s Board of Directors will immediately constitute or be a part of a Related Business of the Company or the Parent Issuers or such Subsidiary Guarantor (if it continues to be a SubsidiaryGuarantor) immediately following such transactiontransaction (such assets or property, the “Related Business Assets”); or
(3) any combination of (1) or (2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture).
(c) All Net Cash Proceeds from an Event of Loss shall be used as follows: (x) first, the Issuers shall use such Net Cash Proceeds to the extent necessary to rebuild, repair, replace or restore the assets subject to such Event of Loss with comparable assets; and (y) then, to the extent any Net Cash Proceeds from an Event of Loss are not used as described in the preceding clause (x) all such remaining Net Cash Proceeds shall be reinvested or used as provided in clause (1), (2) or (3) of Section 4.13(b) hereof.
(d) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in clause (b)(11), (2) or (b)(23) of Section 4.13(b) hereof and the accumulated Net Cash Proceeds from any Event of Loss not applied as set forth in clause (x) or (y) of Section 4.13(c) hereof shall constitute "“Excess Proceeds." Within 30 days after ” Pending the date that the amount final application of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess any Net Cash Proceeds, the Company shall apply an amount Issuers may temporarily reduce revolving credit borrowings or otherwise invest or use for general corporate purposes the Net Cash Proceeds in any manner that is not prohibited by this Indenture; provided, however, that the Issuers may not use the Net Cash Proceeds (x) to make Restricted Payments other than Restricted Payments that are solely Restricted Investments or (y) to make Permitted Investments pursuant to clause (a) of the "Asset Sale Offer Amount"definition thereof.
(e) equal to When the Excess Proceeds equal or exceed $5,000,000, the Issuers shall offer to repurchase the repurchase of the Notes and such Notes, together with any other Indebtedness ranking on a parity with the Notes and with similar provisions requiring the Company Issuers to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "“Asset Sale Offer"”) at a purchase price of 100% of (x) in the case of the Notes, the Accreted Value thereof on the Asset Sale Purchase Date (as defined below), and (y) in the case of any such other Indebtedness, the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) on the Asset Sale Purchase Date (the "“Asset Sale Offer Price"”) together with accrued and unpaid interest (and Liquidated Damages, if any, ) to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (Purchase Date. In order to effect the "Asset Sale Offer Period").
(d) Upon Offer, the Issuers shall promptly after expiration of the 360-day period following the Asset Sale that produced such Excess Proceeds mail to each Holder of Notes notice of the Asset Sale Offer Period(the “Asset Sale Notice”), offering to purchase the Company shall apply Notes on a date (the “Asset Sale Purchase Date”) that is no earlier than 30 days and no later than 60 days after the date that the Asset Sale Notice is mailed. On the Asset Sale Purchase Date, the Issuers shall apply an amount equal to the Excess Proceeds (the “Asset Sale Offer Amount Amount”) plus an amount equal to accrued and unpaid interest (and Liquidated Damages, if any, ) to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof of this Section 4.13 (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued and unpaid interest (and Liquidated Damages, if any)) to the Asset Sale Purchase Date. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company Issuers may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following Indenture. Following the consummation of each Asset Sale Offer in accordance with the provisions of this Section 4.13, the Excess Proceeds amount shall be reset to zero.
(ef) Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1) the Company Issuers and the Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets with a fair market value (or that result in gross proceeds) of less than $1,000,000, until the Parent may aggregate fair market value and their respective gross proceeds of the transactions excluded from the definition of Asset Sale pursuant to this clause (1) exceed $5,000,000;
(2) the Issuers and the Subsidiaries may, in the ordinary course of business, (ax) exchange gaming equipment or other FF&E for replacement items, (y) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (bz) liquidate Cash Equivalents;
(23) the Company Issuers and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1Article V hereof;
(34) the Company Issuers and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's Issuers’ business or the business of such Subsidiary, as applicable;
(45) the Company Issuers and the Parent may and the Guarantors Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent Issuers or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company Issuers and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and;
(7) the Company Issuers and the Parent Subsidiaries may exchange any property or assets for Related Business Assets (as defined in Section 4.13(b)(2) hereof); and
(8) the Issuers and their respective the Subsidiaries may make Permitted Investments pursuant to clause (d) in of the definition thereof and Restricted Investments permitted under that are not prohibited by Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses 4.9 hereof;.
(b)(1g) or (b)(2) of this Section 4.13. 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 federal and state securities laws. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.13, the Company's Issuers’ compliance or the compliance of any of the Company's subsidiaries Subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's Issuers’ obligations under this Section 4.13. .
(h) If the payment date in connection with an Asset Sale Offer hereunder Purchase Date is on or after an interest payment Interest Record Date and on or before the associated Interest Payment Date, any accrued and unpaid interest Interest (and Liquidated Damages, if any) due on such Interest Payment Date shall be paid to the Person in whose name a Note is registered at the close of business on such Interest Record Date.
(i) The Trustee shall be entitled to receive in connection with an Asset Sale such documents, if any, required by the TIA.
(j) Prior to complying with any of the provisions of Section 4.13(e) hereof, the Issuers shall be required either to repay all outstanding Senior Debt or to obtain the requisite consents, if any, under all agreements governing outstanding Senior Debt to permit the repurchase of Notes required by Section 4.13(e) hereof.
Appears in 1 contract
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not not, and shall not permit any of their respective Subsidiaries Restricted Subsidiary to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose ofand each Restricted Entity shall not, directly or indirectly, consummate any Asset Disposition unless:
(1) the Company or such Restricted Entity receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration thereof received by the Company or such Restricted Entity is in the form of cash, Temporary Cash Investments or Designated Noncash Consideration; provided, however, that the amount of any Designated Noncash Consideration received by the Company or any Restricted Entity in such Asset Disposition having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (2) at the time of determination, shall not exceed an amount equal to the greater of (x) $25 million and (y) 2.5% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; provided further that the amount of:
(a) any liabilities of the Company or any Restricted Entity of the Issuer (other than Subordinated Obligations) that are assumed by the transferee of any such assets,
(b) any notes or other obligations or other securities or assets received by the Company or such Restricted Entity of the Company from such transferee that are converted by the Company or such Restricted Entity of the Company into cash within 180 days of the receipt thereof (to the extent of the cash received), and
(c) any Indebtedness of a Restricted Entity (other than Subordinated Obligations) that is no longer a Restricted Entity as a result of the Asset Disposition shall be deemed to be cash for the purposes of this provision;
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or such Restricted Entity, as the case may be:
(A) first, to the extent the Company or such Restricted Entity elects, to acquire Additional Assets or improve Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that the Company shall have an additional six months to apply such Net Available Cash pursuant to this clause (A) if it shall have entered into a binding acquisition or purchase contract in respect of Additional Assets prior to the expiration of such one-year period; provided further that if the Net Available Cash from any Asset Disposition of an FCC License, Industry Canada License or any similar telecommunications license or any Capital Stock of the FCC License Subsidiary, MSV Canada Inc. or any other entity holding a telecommunications license is in excess of $10.0 million, the Net Available Cash from such Asset Disposition may not be applied as provided in this clause (A) and shall be immediately applied as required in clause (b) below; and
(B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above:
(1) to the extent required by the terms of the Old Notes or any other secured Indebtedness of either Issuer or any Restricted Entity, make an offer to the holders of the Old Notes and the holders of such other secured Indebtedness that requires such an offer to purchase, prepay or repay the Old Notes and such other secured Indebtedness pursuant to the terms thereof; and
(2) to the extent that such Net Available Cash is remaining after application in accordance with Section 4.10(a)(3)(B)(1) above, to make an offer to holders of the Notes (and to holders of other Pari Passu Indebtedness that requires such an offer) to purchase Notes (and such other Pari Passu Indebtedness that require such an offer) pursuant to and subject to the conditions contained in this Indenture; provided, that such offer to holders of Notes is for no less than the Noteholders pro rata amount of such Net Available Cash (based on the then outstanding principal amount of the Notes outstanding and the principal amount (or accreted value if issued with discount) of such other Pari Passu Indebtedness); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (3)(B) above, the Issuers or such Restricted Entity shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; provided, however, that the prior proviso shall not affect the ability of the Company of the Restricted Entities to incur Indebtedness under Section 4.06(b). Pending application of Net Available Cash pursuant to this covenant, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness, unless required to do otherwise pursuant to the terms of the Old Notes or any other outstanding secured Indebtedness of either Issuer or Restricted Entity.
(b) In the event of an Asset Disposition that requires the Issuers to make an Offer to purchase the Notes (and other Indebtedness) pursuant to Section 4.10(a)(3)(B)(2) the Issuers shall purchase Notes tendered pursuant to an Offer by the Issuers for the Notes (and such other Indebtedness) (the “Offer”) at a purchase price of 100% of their propertythen outstanding principal amount (such other Indebtedness at a purchase price of 100% of its principal amount or, business or assetsin the event such other Indebtedness was issued with significant original issue discount, including 100% of the accreted value thereof) without premium, plus accrued but unpaid interest (or, in respect of such other Indebtedness, such lesser price, if any, as may be provided for by merger or consolidation the terms of such Indebtedness) in accordance with the procedures set forth in Section 4.10(c). If the aggregate purchase price of the Notes (and such other Indebtedness) tendered exceeds the Net Available Cash allotted to their purchase, the Trustee will select the Notes and such other Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of a Subsidiary the Notes will be denominations of $1,000 principal amount or Unrestricted Subsidiarymultiples thereof. The Company shall not be required to make such an Offer to purchase Notes (and other Indebtedness) pursuant to Section 4.10(a)(3)(B)(2) if the Net Available Cash available therefrom is less than $15.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). To the extent that the aggregate amount of Notes and other Indebtedness tendered is less than the Net Available Cash required to be used to make an Offer to the holders of Notes and such Indebtedness, the Company may use such excess Net Available Cash for any other purpose not prohibited by this Indenture.
(c) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer pursuant to Section 4.10(a)(3)(B)(2), the Company shall deliver to the Trustee and send, by first-class mail to each holder, a written notice stating that the holder may elect to have its Notes purchased by the Issuers either in whole or in part (subject to prorating as described in Section 4.10(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 principal amount, at the applicable purchase price set forth in Section 4.10(b). The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the “Purchase Date”) and shall contain such information concerning the business of the Issuers which the Issuers in good faith believe will enable such holders to make an informed decision and all instructions and materials necessary to tender Notes pursuant to the Offer, together with the information contained in clause (3).
(1) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officer’s Certificate as to (A) the amount of the Offer (the “Offer Amount”), including information as to any sale Pari Passu Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.10(a) and (b). On such date, the Company shall irrevocably deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other transfer Pari Passu Indebtedness, the portion of the deposit described in the preceding sentence that is applicable to such other Pari Passu Indebtedness may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or issuance portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of any Equity Interests payment) to each tendering holder in the amount of any Subsidiary, whether the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Offer Amount applicable to the Notes, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.10.
(2) Holders electing to have Notes purchased shall be required to surrender the Notes, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Parent Company receives not later than one Business Day prior to the Purchase Date, a facsimile transmission or one letter setting forth the name of their respective Subsidiaries the holder, the principal amount of the Notes which were delivered for purchase by the holder and a statement that such holder is withdrawing his election to have such Notes purchased. Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(3) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officer’s Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section. Notes shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the issuancesurrendering holder.
(d) The Company will not, sale or transfer of Equity Interests by one of the Company's Subsidiaries or Unrestricted and will not permit any Restricted Subsidiary to, and including each Restricted Entity will not, engage in any sale and leaseback transaction (any of the foregoing, an "Asset Sale")Swaps, unless:
(1) at least 75% the time of the total consideration for entering into such Asset Sale or series of related Swap and immediately after giving effect to such Asset Sales consists of cash or Cash Equivalents; providedSwap, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on as a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1) the Company or the Parent may and their respective Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalentsconsequence thereof;
(2) the Company and Related Business Assets that are the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose subject of assets pursuant to and in accordance with Section 5.1such Asset Swap have a substantially comparable fair market value;
(3) in the event such Asset Swap involves the transfer by the Company and or any Restricted Entity of assets having an aggregate fair market value, as determined by the Parent may and their respective Subsidiaries may sell or dispose Board of damagedDirectors of the General Partner in good faith, worn out or other obsolete personal property in excess of $10 million, the ordinary course terms of business so long as such property is no longer necessary for Asset Swap have been approved by a majority of the proper conduct members of the Board of Directors of the Company's or the Parent's business or the business of such Subsidiary, as applicable;; and
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;cash received shall be applied in accordance with Section 4.10(a)(3).
(5e) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. 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 Section 4.134.10, the Company's compliance or Issuers will comply with the compliance of any of the Company's subsidiaries with such applicable securities laws and regulations shall and will not in be deemed to have breached its obligations hereunder and of itself cause a breach of the Company's obligations under this Section 4.13. If the payment date in connection 4.10 by virtue of its compliance with an Asset Sale Offer hereunder is on such securities laws 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Dateregulations.
Appears in 1 contract
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not Issuer will not, and shall will not permit any of their respective Subsidiaries Restricted Subsidiary to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, consummate any Asset Disposition unless (i) the Issuer or such Restricted Subsidiary receives consideration at the time of their propertysuch Asset Disposition at least equal to the fair market value (including as to the value of all non cash consideration), business or assets, including as determined in good faith by merger or consolidation the Board of Directors of the Issuer of the shares and assets subject to such Asset Disposition and (ii) except in the case of a Subsidiary or Unrestricted Subsidiary)Tower Asset Exchange, and including any sale or other transfer or issuance of any Equity Interests of any Subsidiary, whether by the Company or the Parent or one of their respective Subsidiaries or through the issuance, sale or transfer of Equity Interests by one of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
(1) at least 75% of the total consideration for thereof received by the Issuer or such Asset Sale or series of related Asset Sales consists Restricted Subsidiary is in the form of cash or cash equivalents. Within 365 days after the receipt of any Net Available Cash Equivalentsfrom an Asset Disposition, the Issuer or the applicable Restricted Subsidiary may apply such Net Available Cash to: (A) prepay, repay, redeem or purchase Indebtedness (other than Disqualified Stock) of a Wholly Owned Subsidiary (provided, that the applicable Restricted Subsidiary, whether or not a Wholly Owned Subsidiary, also may prepay, repay, redeem or purchase its own outstanding Indebtedness) or Senior Indebtedness (in each case other than Indebtedness owed to the Issuer or an Affiliate of the Issuer); (B) acquire all or substantially all of the assets of an entity engaged in a Permitted Business; (C) acquire Voting Stock of an entity engaged in a Permitted Business from a Person that is not a Subsidiary of the Issuer; provided, that with respect to the sale of one or more hotel propertiesthat, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2x) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parenteffect thereto, the Company Issuer or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any its Restricted Subsidiary owns a majority of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1) the Company or the Parent may and their respective Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(2) the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. 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 Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date.such
Appears in 1 contract
Sources: Indenture (Spectrasite Holdings Inc)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or and the Parent Guarantors shall not not, and shall not permit any of their respective Subsidiaries to, in one or a series of related transactions, convey, sell, lease, transfer, assign or otherwise dispose of, directly or indirectly, any of their its property, business or assets, including by merger or consolidation (in the case of a Guarantor or a Subsidiary or Unrestricted Subsidiaryof the Company), and including any sale or other transfer or issuance of any Equity Interests of any SubsidiarySubsidiary of the Company, whether by the Company or the Parent or one of their respective Subsidiaries a Subsidiary or through the issuance, sale or transfer of Equity Interests by one a Subsidiary of the Company's Subsidiaries or Unrestricted Subsidiary , and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
unless (1) the Company (or a Subsidiary of the Company, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value (evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and (2) at least 75% (100% in the case of lease payments) of the total consideration received by the Company or the applicable Subsidiary for such the Asset Sale or series of related Asset Sales consists is in the form of cash or Cash Equivalents; provided that the amount of: (a) any liabilities (as shown on the Company's or such Subsidiary's most recent balance sheet or in the notes thereto) of the Company or any of its Subsidiaries that rank equal in right of payment to the Notes and that are assumed by the transferee of any such assets, provided, that the Company and all of its Subsidiaries are unconditionally released from any further liability with respect to the sale of one or more hotel propertiessuch assumed liabilities, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds securities, notes or other obligations received by the Company or the Parent or any of their respective Subsidiaries such Subsidiary from such Asset Saletransferee that are immediately (but in no event more than 30 days after receipt, plus subject to customary settlement periods) converted by the Company or such Subsidiary into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents, as the case may be, received) shall be deemed to be cash or Cash Equivalents, as the case may be, for purposes of this provision. Within 360 days after the receipt of any Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such from an Asset Sale, the Company or the applicable Subsidiary, as the case may be, may apply such Net Cash Proceeds therefrom Proceeds, at its option, to: (w) permanently reduce Indebtedness outstanding under the "Asset Sale Amount") shall be:
(1) invested Credit Agreement; provided, that, in assets and property (except in connection with the acquisition case of a Subsidiary which revolving credit facility or similar arrangement that makes credit available under the Credit Agreement, such commitment is also permanently reduced by such amount, or (x) purchase one or more businesses or to purchase more than 50% of the Equity Interests of a Guarantor Person operating one or more businesses so long as such Person becomes a Subsidiary, (y) make capital expenditures, and/or (z) acquire other long-term assets, in each case, so long as such business or businesses, capital expenditures or long-term assets are in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any such Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings outstanding under the Credit Agreement or otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this the Indenture.
(c) The accumulated . Any Net Cash Proceeds from Asset Sales that are not so applied as set forth in (b)(1) or (b)(2) shall constitute invested will be considered "Excess Proceeds." Within 30 days after When the date that the aggregate amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds10,000,000, the Company shall apply make an amount (the "Asset Sale Offer Amount") equal offer, within such 360-day period, to the Excess Proceeds to the repurchase all holders of Notes and all holders of the Notes and such Company's other Indebtedness ranking on a parity with equal in right of payment to the Notes and with similar provisions requiring the Company to make an offer to purchase (or otherwise repay) such Indebtedness with the proceeds from of such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) outstanding (the an "Asset Sale Offer") at a to purchase the maximum principal amount of Notes and such other Indebtedness that may be purchased out of the Excess Proceeds. The offer price of for an Asset Sale Offer will be 100% of the principal amount (or accreted value in of the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with Notes plus accrued and unpaid interest and Liquidated Damages, if any, on the Notes to the date of paymentpurchase. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered The offer price will be paid in cash in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any)procedures set forth herein. To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer AmountExcess Proceeds, the Company may use any remaining Net Cash Excess Proceeds as otherwise permitted not so utilized for general corporate purposes. If the aggregate principal amount of Notes and such other Indebtedness surrendered by this Indenture and following holder thereof exceeds the consummation amount of each Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of a purchase of Notes pursuant to an Asset Sale Offer Offer, the amount of Excess Proceeds amount shall be reset to at zero.
(e) . Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1i) the Company or the Parent may and their respective its Subsidiaries may, in the ordinary course of business, (a1) convey, sell, lease, transfer, assign or otherwise dispose of inventory inventory, receivables or pianos in the Company's Concert and other assets acquired and held for resale Artist Piano Bank, in each case in the ordinary course of business consistent with past practice and (b2) liquidate Cash Equivalents;
(2ii) the Company may, and the Parent may and their respective its Subsidiaries may may, convey, sell, lease, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1Article V hereof;
(3iii) the Company may, and the Parent may and their respective its Subsidiaries may may, sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of the Company or such Subsidiary, as applicable;
(4iv) the Company may convey, sell, lease, transfer, assign or otherwise dispose of assets to any of the Company's Wholly Owned Subsidiaries, and a Wholly Owned Subsidiary may convey, sell, lease, transfer, assign or otherwise dispose of assets to the Parent Company or to another Wholly Owned Subsidiary;
(v) a Wholly Owned Subsidiary may issue Equity Interests to the Company or to another Wholly Owned Subsidiary;
(vi) the Company may, and the Guarantors its Subsidiaries may, make Restricted Payments that are permitted by Section 4.9 hereof;
(vii) Foreign Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets to the Company or any of its Subsidiaries, and
(viii) the Parent Company may, and its Subsidiaries may, sell or otherwise transfer to a third-party financing company any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, Receivables Financing Notes in an amount not to exceed $60,000,000 in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. 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 lawsaggregate at any one time outstanding. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.13, compliance by the Company's compliance Company or the compliance of any of the Company's subsidiaries its Subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's its obligations under this Section 4.13. 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 shall 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.
Appears in 1 contract
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not not, and shall not permit any of their respective its Subsidiaries to, in one transaction or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their respective property, business or assets, including by merger or consolidation (in the case of a Subsidiary or Unrestricted Subsidiaryof the Company), and including any sale or other transfer or issuance of any Equity Interests Capital Stock of any SubsidiarySubsidiary of the Company, whether by the Company or the Parent or one a Subsidiary of their respective Subsidiaries either or through the issuance, sale or transfer of Equity Interests Capital Stock by one a Subsidiary of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and leaseback transaction Company (any of the foregoing, an "Asset Sale"), unless:
unless (11)(a) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or within 180 days after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% date of Adjusted Consolidated Net Tangible Assets, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Offer Amount") shall be:
are applied to the optional redemption of the Securities in accordance with the terms of this Indenture or to the repurchase of the Securities pursuant to an irrevocable, unconditional cash offer (1the "Asset Sale Offer") to repurchase Securities at a purchase price (the "Asset Sale Offer Price") of 100% of the principal amount thereof, plus accrued interest to the date of payment, made within 180 days of such Asset Sale or (b) within 180 days following such Asset Sale, the Asset Sale Offer Amount is (i) invested in fixed assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation obligations and securities) which shall in the good faith reasonable judgment of the Board will immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
transaction or (2ii) used to retire any Indebtedness incurred under ranking at least pari passu with the Credit Agreement Securities and the Guarantees and to permanently reduce the amount of such Indebtedness permitted (including that in the case of a revolver or similar arrangement that makes credit available, such commitment is so permanently reduced by such amount); (2) at least 75% of the consideration for such Asset Sale consists of Cash or Cash Equivalents; (3) no Default or Event of Default would occur and be continuing at the time of, or would occur after giving effect to, such Asset Sale; and (4) with respect to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Asset Sale resulting in Net Cash Proceeds in any manner excess of $500,000, the Board of Directors of the Company determines in good 44 faith that is not prohibited by this Indenture.the Company or such Subsidiary, as applicable, receives Fair Market Value for such Asset Sale. Notwithstanding the foregoing provisions of the prior paragraph:
(ci) The the Company and its Subsidiaries may, in the ordinary course of business, convey, sell, lease, transfer, assign or otherwise dispose of inventory acquired and held for resale in the ordinary course of business;
(ii) the Company and its Subsidiaries may convey, sell, lease, transfer, assign or otherwise dispose of assets pursuant to and in accordance with the provisions of Article V;
(iii) the Company and its Subsidiaries may convey, sell, lease, transfer, assign or otherwise dispose of assets to the Company or any of its Subsidiaries;
(iv) the Company and its Subsidiaries may in the ordinary course of business sell, transfer, convey or otherwise dispose of Third Party Plan Receivables in customary factoring arrangements; and
(v) the Company and its Subsidiaries may consummate any sale or series of related sales of assets or properties of the Company and its Subsidiaries having an aggregate Fair Market Value of less than $1 million in any fiscal year. An Asset Sale Offer may be deferred until the accumulated Net Cash Proceeds from Asset Sales not applied as to the uses set forth in clause (b)(1l)(b) or above (b)(2) shall constitute the "Excess Proceeds." Within 30 days after ") exceeds $3 million (the date that the amount of Excess Proceeds exceeds $10 million, on which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds exceed $3 million being herein referred to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (as the "Asset Sale OfferExcess Proceeds Date") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each each Asset Sale Offer shall remain open for 20 Business Days following its commencement and no longer (the "Asset Sale Offer Period").
(d) . Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness Securities properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness Securities so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if anyinterest). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness Securities tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds for general corporate purposes as otherwise permitted by this Indenture Indenture, and following the consummation of each Asset Sale Offer Offer, the Excess Proceeds amount shall be reset to zero.
(e) Notwithstanding, and without complying with, . Notice of an Asset Sale Offer will be sent 20 Business Days prior to the other provisions close of business on the third Business Day prior to the date set by the Company to repurchase 45 Securities pursuant to this Section 4.134.13 (the "Purchase Date"), by first-class mail, by the Company to each Holder at its registered address, with a copy to the Principal Corporate Trust Office of the Trustee. The notice to the Holders will contain all information, instructions and materials required by applicable law. The notice, which (to the extent consistent with this Indenture) shall govern the terms of the Asset Sale Offer, shall state:
(1) that the Company or the Parent may Asset Sale Offer is being made pursuant to such notice and their respective Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalentsthis Section 4.13;
(2) the Company Asset Sale Offer, the Asset Sale Offer Price (including the amount of accrued and unpaid interest), and the Parent may and their respective Subsidiaries may conveyPurchase Date, sell, transfer, assign which Purchase Date shall be on or otherwise dispose of assets pursuant prior to and in accordance with Section 5.145 Business Days following the Excess Proceeds Date;
(3) the Company and the Parent may and their respective Subsidiaries may sell that any Security or dispose of damaged, worn out portion thereof not tendered or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary accepted for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicablepayment will continue to accrue interest;
(4) that, unless the Company and defaults in depositing Cash with the Parent may and Paying Agent in accordance with the Guarantors may conveyprovisions of this Section 4.13, sellany Security, transferor portion thereof, assign or otherwise dispose of assets accepted for payment pursuant to the Company or Asset Sale Offer shall cease to accrue interest after the Parent or any of the GuarantorsPurchase Date;
(5) that Holders electing to have a Security, or portion there of, purchased pursuant to an Asset Sale Offer will be required to surrender the Security, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Security completed, to the Paying Agent (which may not for purposes of this Section 4.13, notwithstanding anything in this Indenture to the contrary, be the Company and or any Affiliate of the Parent may and their respective Subsidiaries may, Company) at the address specified in the ordinary course notice prior to the close of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 millionbusiness on the third Business Day prior to the Purchase Date;
(6) that Holders will be entitled to withdraw their elections, in whole or in part, if the Paying Agent receives, up to the close of business on the third Business Day prior to the Purchase Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities the Holder is withholding and a statement that such Holder is withdrawing his election to have such principal amount of Securities purchased;
(7) that if Securities in a principal amount in excess of the principal amount of Securities to be acquired pursuant to the Asset Sale Offer are tendered and not withdrawn, the Company and shall purchase Securities on a pro rata basis (with such adjustments as may be deemed appropriate by the Parent may and their respective Subsidiaries may surrender Company so that only Securities in denominations of $1,000 or waive or settle, release or surrender tort or other litigation claims integral multiples of $1,000 shall be acquired);
(8) that Holders whose Securities were purchased only in part will be issued new Securities equal in principal amount to the ordinary course unpurchased portion of business or grant Liens not prohibited by this Indenturethe Securities surrendered; and
(9) a brief description of the circumstances and relevant facts regarding such Asset Sales. On or before the Purchase Date, the Company shall (i) accept for payment Securities or portions thereof properly tendered pursuant to the Asset Sale Offer on or before the third Business Day prior to the Purchase Date (on a pro rata basis if required pursuant to paragraph (7) hereof) and (ii) deposit with the Paying Agent Cash sufficient to pay the Asset Sale Offer Price for all Securities or portions thereof so tendered and accepted plus accrued and unpaid interest thereon to the Purchase Date. On the Purchase Date, the Company shall deliver to the Trustee Securities so accepted together with an Officers' Certificate stating the Securities or portions thereof being purchased by the Company. The Paying Agent shall on the Purchase Date mail or deliver to Holders of Securities so accepted payment in an amount equal to the Asset Sale Offer Price for such Securities (together with accrued and unpaid interest), and the Parent may Trustee shall promptly authenticate and their respective Subsidiaries may make Permitted Investments pursuant available for delivery to clause (d) such Holders a new Security equal in principal amount to any unpurchased portion of the definition thereof and Restricted Investments permitted under Section 4.9Security surrendered. All Net Cash Proceeds from an Event of Loss Any Security not so accepted shall be reinvested promptly mailed or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13delivered by the Company to the Holder thereof. Any The Company agrees that 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 , and any provisions of this Indenture which conflict with such laws shall be deemed to be superseded by the provisions of any securities laws or regulations conflict with the provisions of this Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Datelaws.
Appears in 1 contract
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or Issuer and the Parent Subsidiary Guarantors shall not not, and shall not permit any of their respective Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their its property, business or assets, including by merger or consolidation (in the case of a Subsidiary or Unrestricted Subsidiaryof the Issuer), and including any sale or other transfer or issuance of any Equity Interests of any SubsidiarySubsidiary of the Issuer, whether by the Company Issuer or the Parent or one a Subsidiary of their respective Subsidiaries either or through the issuance, sale or transfer of any Equity Interests Interest by one a Subsidiary of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and leaseback transaction Issuer (any of the foregoing, foregoing an "Asset Sale"), unless:
unless (11)(a) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Offer Amount") shall be:
are applied (1i) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 within 330 days after the date that the amount of Excess Proceeds exceeds $10 millioneach such Asset Sale, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase optional redemption of the Notes and such in accordance with the terms of this Indenture and, at the Issuer's option, other Indebtedness of the Issuer ranking on a parity with the Notes and from time to time outstanding with similar provisions requiring the Company Issuer to make an offer to purchase or to redeem such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable lawasset sales, if any) (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 outstandingoutstanding or (ii) within 360 days after the date of each such Asset Sale, to the repurchase of the Notes pursuant to a cash offer to repurchase Notes and, at the Issuer's option, other Indebtedness of the Issuer ranking on a parity with the Notes from time to time outstanding with similar provisions requiring the Issuer to make an offer to purchase or to redeem such Indebtedness with the 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 (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each , made within 330 days of such Asset Sale Offer shall remain open for 20 Business Days Sale, or (b) within 330 days following its commencement (the "such Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer PeriodSale, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient (i) used to purchase all Indebtedness so tendered) at the Asset Sale Offer Price make a Permitted Investment (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1) the Company or the Parent may and their respective Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(2) the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (di) thereof) or otherwise invested (or committed, pursuant to a binding commitment subject only to reasonable, customary closing conditions, to be invested, and in fact is so invested, within an additional 90 days) in assets and property which in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. Any Asset Sale Offer shall be made in compliance with all applicable laws, rules, and regulations, including, if applicable, Regulation 14E good faith reasonable judgment 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 Issuer will immediately constitute or be a part of any securities laws or regulations conflict with the provisions of this Section 4.13, the Company's compliance or the compliance of any a Related Business of the Company's subsidiaries with Issuer or such laws and regulations shall not in and of itself cause Subsidiary (if it continues to be a breach of the Company's obligations under this Section 4.13. If the payment date in connection with Subsidiary) immediately following such transaction, except that no proceeds from an Asset Sale Offer hereunder is on of Existing Assets or after assets acquired (directly or indirectly) from the proceeds of an interest payment Record Date and on Asset Sale of Existing Assets may be invested in or before the associated Interest Payment Date, any accrued and unpaid interest used to acquire assets or property for a Foreign Subsidiary or (and Liquidated Damages, if anyii) due on such Interest Payment Date shall be paid used to the Person retire Purchase Money Indebtedness or other Senior Debt in whose name a Note is registered at the close of business on such Record Date.accordance with
Appears in 1 contract
Sources: Indenture (Corporate Express Delivery Systems Air Division Inc)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not not, and shall not permit any of their respective its Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their its property, business or assets, including by merger or consolidation (in other than a merger or consolidation of the case of a Subsidiary or Unrestricted SubsidiaryCompany), and including any sale or other transfer or issuance of any Equity Interests of any SubsidiarySubsidiary of the Company, whether by the Company or the Parent or one a Subsidiary of their respective Subsidiaries either or through the issuance, sale or transfer of Equity Interests by one a Subsidiary of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and leaseback transaction Company (any of the foregoing, an "Asset Sale"), unless:
unless (1l)(a) within 210 days after the date of such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Offer Amount") are applied to the optional redemption of the Securities in accordance with the terms hereof or to the repurchase of Securities pursuant to a cash offer (the "Asset Sale Offer") to repurchase Securities at a purchase price (the "Asset Sale Offer Price") of 100% of principal amount, plus accrued interest to the date of payment, made within 180 days of such Asset Sale or (b) within 180 days following such Asset Sale (subject to the right under the Indenture, dated as of October 16, 1996, governing the October Notes to accumulate $15 million in proceeds), the Asset Sale Offer Amount is (i) invested (or committed to be invested, and in fact is so invested, within an additional 90 days) in assets and property other than notes, bonds, obligation and securities (except in connection with the acquisition of a wholly owned Subsidiary) which in the good faith reasonable judgment of the Board will immediately constitute or be a part of a Related Business of the Company or such Subsidiary immediately following such transaction or (ii) used to permanently reduce Senior Debt (PROVIDED that in the case of a revolver or similar arrangement that makes credit available, such commitment is also permanently reduced by such amount) or redeem or purchase the October Notes, (2) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash Cash, Cash Equivalents or Cash Equivalents; providedPermitted Investments, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(23) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro PRO forma basis, to to, such Asset Sale; and
, and (34) the Parent and Board of Directors of the Company determine determines in good faith that the consideration received by the Parent, the Company or their respective Subsidiariessuch Subsidiary, as applicable, equals the receives fair market value for such Asset Sale.. Notwithstanding the foregoing provisions of the prior paragraph:
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on the Company and its Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign or after otherwise dispose of inventory acquired and held for resale in the Issue Date and ordinary course of business;
(ii) within the 360-day period proceeding such Asset SaleCompany and its Subsidiaries may convey, exceed 10% sell, transfer, assign or otherwise dispose of Adjusted Consolidated Net Tangible Assetsassets pursuant to and in accordance with the limitation on mergers, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:sales or consolidations provisions in this Indenture;
(1iii) invested the Company and its Subsidiaries may sell or dispose of damaged, worn out or other obsolete property in assets and the ordinary course of business so long as such property (except in connection with is no longer necessary for the acquisition proper conduct of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business the business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, oras applicable;
(2iv) used the Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or any of its wholly owned Subsidiaries; and
(v) the Parent Company and its Subsidiaries may temporarily reduce revolving credit borrowings convey, sell, transfer, assign or otherwise invest the Net Cash Proceeds dispose of assets (in addition to those transactions described in clause (i) through (iv) of this Section 4.13) with an aggregate fair market value of $5 million in any manner that is not prohibited by this Indenture.
(c) The fiscal year. An Asset Sale Offer may be deferred until the accumulated Net Cash Proceeds from Asset Sales not applied as to the uses set forth in clause (b)(1l) or of the first paragraph of this Section 4.10 (b)(2) shall constitute the "Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds ") exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale 15 million and that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) . Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness Securities properly tendered in accordance with the provisions hereof (on a pro rata PRO RATA basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness Securities so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if anyinterest). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness Securities tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds for general corporate purposes as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
. For purposes of clause (e2) Notwithstanding, and without complying with, of the other provisions first paragraph of this Section 4.13:
(1) 4.13 total consideration received means the Company or total consideration received for such Asset Sales minus the Parent may and their respective Subsidiaries may, in the ordinary course amount of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business Senior Debt assumed by a transferee and (b) liquidate property that within 30 days of such Asset Sale is converted into Cash or Cash Equivalents;
(2) the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested invested, used for prepayment of Senior Debt, or used to repurchase Securities, all within the period and as otherwise provided above in clauses (b)(1clause 1(a) or (b)(21(b) of the first paragraph of this Section 4.13. Notice of an Asset Sale Offer will be sent 20 Business Days prior to the close of business on the third Business Day prior to the date set by the Company to repurchase Securities pursuant to this Section 4.13 (the "Purchase Date"), by first-class mail, by the Company to each Holder at its registered address, with a copy to the Trustee. The notice to the Holders will contain all information, instructions and materials required by applicable law. The notice, which (to the extent consistent with this Indenture) shall govern the terms of the Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant to such notice and this Section 4.13;
(2) the Asset Sale Offer, the Asset Sale Offer Price (including the amount of accrued and unpaid interest), and the Purchase Date, which Purchase Date shall be on or prior to 45 Business Days following the Excess Proceeds Date;
(3) that any Security or portion thereof not tendered or accepted for payment will continue to accrue interest;
(4) that, unless the Company defaults in depositing Cash with the Paying Agent in accordance with the provisions of this Section 4.13, any Security, or portion thereof, accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Security, or portion thereof, purchased pursuant to an Asset Sale Offer will be required to surrender the Security, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Security completed, to the Paying Agent (which may not for purposes of this Section 4.13, notwithstanding anything in this Indenture to the contrary, be the Company or any Affiliate of the Company) at the address specified in the notice prior to the close of business on the third Business Day prior to the Purchase Date;
(6) that Holders will be entitled to withdraw their elections, in whole or in part, if the Paying Agent receives, up to the close of business on the third Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities the Holder is withholding and a statement that such Holder is withdrawing his election to have such principal amount of Securities purchased;
(7) that if Securities in a principal amount in excess of the principal amount of Securities to be acquired pursuant to the Asset Sale Offer are tendered and not withdrawn, the Company shall purchase Securities on a PRO RATA basis (with such adjustments as may be deemed appropriate by the Company so that only Securities in denominations of $1,000 or integral multiples of $1,000 shall be acquired);
(8) that Holders whose Securities were purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; and
(9) a brief description of the circumstances and relevant facts regarding such Asset Sales. On or before the Purchase Date, the Company shall (i) accept for payment Securities or portions thereof properly tendered pursuant to the Asset Sale Offer on or before the third Business Day prior to the Purchase Date (on a PRO RATA basis if required pursuant to paragraph (7) hereof) and (ii) deposit with the Paying Agent Cash sufficient to pay the Asset Sale Offer Price for all Securities or portions thereof so tendered and accepted plus accrued and unpaid interest thereon to the Purchase Date. On the Purchase Date, the Company shall deliver to the Trustee Securities so accepted together with an Officers' Certificate stating the Securities or portions thereof being purchased by the Company. The Paying Agent shall on the Purchase Date mail or deliver to Holders of Securities so accepted payment in an amount equal to the Asset Sale Offer Price for such Securities (together with accrued and unpaid interest), and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Security equal in principal amount to any unpurchased portion of the Security surrendered. Any Security not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company agrees that 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 , and any provisions of this Indenture which conflict with such laws shall be deemed to be superseded by the provisions of any securities laws or regulations conflict with the provisions of this Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Datelaws.
Appears in 1 contract
Sources: Indenture (Universal Outdoor Inc)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not not, and shall not permit any of their respective its Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their its property, business or assets, including by merger or consolidation (in other than a merger or consolidation of the case of a Subsidiary or Unrestricted SubsidiaryCompany), and including any sale or other transfer or issuance of any Equity Interests of any SubsidiarySubsidiary of the Company, whether by the Company or the Parent or one a Subsidiary of their respective Subsidiaries either or through the issuance, sale or transfer of Equity Interests by one a Subsidiary of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and leaseback transaction Company (any of the foregoing, an "Asset Sale"), unless:
unless (1l)(a) within 210 days after the date of such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Offer Amount") are applied to the optional redemption of the Securities in accordance with the terms hereof or to the repurchase of Securities pursuant to a cash offer (the "Asset Sale Offer") to repurchase Securities at a purchase price (the "Asset Sale Offer Price") of 100% of principal amount, plus accrued interest to the date of payment, made within 180 days of such Asset Sale or (b) within 180 days following such Asset Sale, the Asset Sale Offer Amount is (i) invested (or committed to be 50 invested, and in fact is so invested, within an additional 90 days) in assets and property other than notes, bonds, obligation and securities (except in connection with the acquisition of a wholly owned Subsidiary) which in the good faith reasonable judgment of the Board will immediately constitute or be a part of a Related Business of the Company or such Subsidiary immediately following such transaction or (ii) used to permanently reduce Senior Debt (PROVIDED that in the case of a revolver or similar arrangement that makes credit available, such commitment is also permanently reduced by such amount), (2) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash Cash, Cash Equivalents or Cash Equivalents; providedPermitted Investments, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(23) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma PRO FORMA basis, to to, such Asset Sale; and
, and (34) the Parent and Board of Directors of the Company determine determines in good faith that the consideration received by the Parent, the Company or their respective Subsidiariessuch Subsidiary, as applicable, equals the receives fair market value for such Asset Sale.. Notwithstanding the foregoing provisions of the prior paragraph:
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on the Company and its Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign or after otherwise dispose of inventory acquired and held for resale in the Issue Date and ordinary course of business;
(ii) within the 360-day period proceeding such Asset SaleCompany and its Subsidiaries may convey, exceed 10% sell, transfer, assign or otherwise dispose of Adjusted Consolidated Net Tangible Assetsassets pursuant to and in accordance with the limitation on mergers, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:sales or consolidations provisions in this Indenture;
(1iii) invested the Company and its Subsidiaries may sell or dispose of damaged, worn out or other obsolete property in assets and the ordinary course of business so long as such property (except in connection with is no longer necessary for the acquisition proper conduct of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business the business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, oras applicable;
(2iv) used the Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or any of its wholly owned Subsidiaries; and
(v) the Parent Company and its Subsidiaries may temporarily reduce revolving credit borrowings convey, sell, transfer, assign or otherwise invest the Net Cash Proceeds dispose of assets (in addition to those transactions described in clause (i) through (iv) of this Section 4.13) with an aggregate fair market value of $5 million in any manner that is not prohibited by this Indenture.
(c) The fiscal year. An Asset Sale Offer may be deferred until the accumulated Net Cash Proceeds from Asset Sales not applied as to the uses set forth in clause (b)(1l) or of the first paragraph of this Section 4.10 (b)(2) shall constitute the "Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds ") exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale 15 million and that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) . Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness Securities properly tendered in accordance with the provisions hereof (on a pro rata PRO RATA basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness Securities so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if anyinterest). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness Securities tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds for general corporate purposes as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
. For purposes of clause (e2) Notwithstanding, and without complying with, of the other provisions first paragraph of this Section 4.13:
(1) 4.13 total consideration received means the Company or total consideration received for such Asset Sales minus the Parent may and their respective Subsidiaries may, in the ordinary course amount of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business Senior Debt assumed by a transferee and (b) liquidate property that within 30 days of such Asset Sale is converted into Cash or Cash Equivalents;
(2) the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested invested, used for prepayment of Senior Debt, or used to repurchase Securities, all within the period and as otherwise provided above in clauses (b)(1clause 1(a) or (b)(21(b) of the first paragraph of this Section 4.13. Notice of an Asset Sale Offer will be sent 20 Business Days prior to the close of business on the third Business Day prior to the date set by the Company to repurchase Securities pursuant to this Section 4.13 (the "Purchase Date"), by first-class mail, by the Company to each Holder at its registered address, with a copy to the Trustee. The notice to the Holders will contain all information, instructions and materials required by applicable law. The notice, which (to the extent consistent with this Indenture) shall govern the terms of the Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant to such notice and this Section 4.13;
(2) the Asset Sale Offer, the Asset Sale Offer Price (including the amount of accrued and unpaid interest), and the Purchase Date, which Purchase Date shall be on or prior to 45 Business Days following the Excess Proceeds Date;
(3) that any Security or portion thereof not tendered or accepted for payment will continue to accrue interest;
(4) that, unless the Company defaults in depositing Cash with the Paying Agent in accordance with the provisions of this Section 4.13, any Security, or portion thereof, accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase Date;
(5) that Holders electing to have a Security, or portion thereof, purchased pursuant to an Asset Sale Offer will be required to surrender the Security, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Security completed, to the Paying Agent (which may not for purposes of this Section 4.13, notwithstanding anything in this Indenture to the contrary, be the Company or any Affiliate of the Company) at the address specified in the notice prior to the close of business on the third Business Day prior to the Purchase Date;
(6) that Holders will be entitled to withdraw their elections, in whole or in part, if the Paying Agent receives, up to the close of business on the third Business Day prior to the Purchase Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Securities the Holder is withholding and a statement that such Holder is withdrawing his election to have such principal amount of Securities purchased;
(7) that if Securities in a principal amount in excess of the principal amount of Securities to be acquired pursuant to the Asset Sale Offer are tendered and not withdrawn, the Company shall purchase Securities on a PRO RATA basis (with such adjustments as may be deemed appropriate by the Company so that only Securities in denominations of $1,000 or integral multiples of $1,000 shall be acquired);
(8) that Holders whose Securities were purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; and
(9) a brief description of the circumstances and relevant facts regarding such Asset Sales. On or before the Purchase Date, the Company shall (i) accept for payment Securities or portions thereof properly tendered pursuant to the Asset Sale Offer on or before the third Business Day prior to the Purchase Date (on a PRO RATA basis if required pursuant to paragraph (7) hereof) and (ii) deposit with the Paying Agent Cash sufficient to pay the Asset Sale Offer Price for all Securities or portions thereof so tendered and accepted plus accrued and unpaid interest thereon to the Purchase Date. On the Purchase Date, the Company shall deliver to the Trustee Securities so accepted together with an Officers' Certificate stating the Securities or portions thereof being purchased by the Company. The Paying Agent shall on the Purchase Date mail or deliver to Holders of Securities so accepted payment in an amount equal to the Asset Sale Offer Price for such Securities (together with accrued and unpaid interest), and the Trustee shall promptly authenticate and mail or deliver to such Holders a new Security equal in principal amount to any unpurchased portion of the Security surrendered. Any Security not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company agrees that 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 , and any provisions of this Indenture which conflict with such laws shall be deemed to be superseded by the provisions of any securities laws or regulations conflict with the provisions of this Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Datelaws.
Appears in 1 contract
Sources: Indenture (Universal Outdoor Inc)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or and the Parent Guarantors shall not not, and shall not permit any of their respective the Company's Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their property, business or assets, including by merger or consolidation (in the case of a Guarantor or a Subsidiary or Unrestricted SubsidiarySubsidiary of the Company), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiaryof the Company's Subsidiaries or Unrestricted Subsidiaries, whether by the Company or the Parent or one of their respective its Subsidiaries or Unrestricted Subsidiaries or through the issuance, sale or transfer of Equity Interests by one of the Company's Subsidiaries or Unrestricted Subsidiary Subsidiaries and including any sale and sale-leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
, with respect to any Asset Sale or related series of Asset Sales involving securities, property or assets with an aggregate fair market value in excess of $5,000,000 (1an Asset Sale (including a series of related Asset Sales) of less than $5,000,000 shall not be subject to this Section 4.13), (a) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
and (2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3b) the Parent and the Company determine Company's Board of Directors determines in good faith that the consideration received by the Parent, the Company will be receiving or their respective Subsidiariessuch Subsidiary will be receiving, as applicable, equals the fair market value for such Asset Sale. Solely for purposes of the preceding sentence, "cash and Cash Equivalents" shall also include, (i) Purchase Money Indebtedness secured solely by the assets sold and assumed by a transferee; provided, that the Company and its Subsidiaries are fully released from obligations in connection therewith, (ii) assets for use in a Related Business or Equity Interests of a Person that becomes a Guarantor which is primarily engaged in a Related Business, (iii) Indebtedness incurred under the Credit Agreement that is assumed by a transferee; provided that the Company and its Subsidiaries are fully released from obligations in connection with the amounts assumed and the assumed Indebtedness permanently reduced the Indebtedness under the Credit Agreement (and in the case of a revolver or similar arrangement that makes credit available, such commitment is permanently reduced by such amount), (iv) property that within 30 days of such Asset Sale is converted into cash or Cash Equivalents; provided, that such cash and Cash Equivalents shall be treated as Net Cash Proceeds attributable to the original Asset Sale for which such property was received and (v) TMS Indebtedness; provided that the Company and its Subsidiaries are fully released from obligations in connection with the amounts assumed.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within Within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) invested used (i) to retire Purchase Money Indebtedness secured by the asset which was the subject of the Asset Sale; or (ii) to retire and permanently reduce Indebtedness incurred under the Credit Agreement; provided, that in the case of a revolver or similar arrangement that makes credit available, such commitment is permanently reduced by such amount; or
(2) used to make (i) capital expenditures or (ii) investments in assets and property (other than notes, bonds, obligations and securities, except in connection with the acquisition of a Subsidiary which is a Guarantor Person in a Related Business, other than notes, bonds, obligation and securitiesBusiness that becomes a Guarantor) which shall in the good faith reasonable judgment of the Company's Board of Directors will immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary Guarantor (if it continues to be a SubsidiaryGuarantor) immediately following such transaction; or the Company shall, orwithin such 360-day period, enter into a legally binding agreement to apply such Net Cash Proceeds as described in this clause (b) within six months after such agreement is entered into and apply such Net Cash Proceeds in accordance with the provisions of this clause (b); provided, that if such agreement terminates the Company shall have until the later of (i) 90 days after the date of such termination and (ii) 360 days after the date of the Asset Sale resulting in such Net Cash Proceeds to effect such application.
(2c) used to retire Indebtedness incurred under the Credit Agreement The accumulated Net Cash Proceeds from Asset Sales and to permanently reduce the amount from any Event of such Indebtedness permitted to be incurred pursuant to Loss not applied as set forth in Section 4.7(b4.13(b) hereof. shall constitute "Excess Proceeds." Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest or use for general corporate purposes (other than Restricted Payments that are not solely Restricted Investments) the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(cd) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after When the date that the amount of Excess Proceeds exceeds equal or exceed $10,000,000, within 10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, Business Days the Company shall apply an amount (offer to repurchase the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such Notes, together with any other Indebtedness ranking on a parity with the Notes and with similar provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (), pro rata in proportion to the respective principal amounts of such Indebtedness (or accreted values in the case of Indebtedness issued with an original issue discount) of and the Notes and such other Indebtedness then outstanding) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each The Asset Sale Offer shall remain open for at least 20 Business Days following its commencement (the "Asset Sale Offer Period").
(de) Upon expiration of the Asset Sale Offer Period, the Company shall apply an amount equal to the Excess Proceeds (the "Asset Sale Offer Amount Amount") plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued and unpaid interest and Liquidated Damages, if any, to the day of payment). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following Indenture. Following the consummation of each Asset Sale Offer Offer, the Excess Proceeds amount shall be reset to zero.
(ef) Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1) the Company or the Parent may and their respective its Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(2) the Company and the Parent may and their respective its Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective its Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors its Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course each of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective its Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(76) the Company and the Parent may and their respective its Subsidiaries may make Permitted Investments Invest ments (other than pursuant to clause (da) in of the definition thereof thereof) and Restricted Investments permitted under that are not prohibited by Section 4.9. 4.9 hereof.
(g) All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(11) or (b)(22) of this Section 4.13. 4.13(b).
(h) 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 Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries its Subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. If the payment date in connection with an Asset Sale Offer hereunder is on or after an interest payment Interest 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 shall Date) will be paid to the Person in whose name a Note is registered at the close of business on such Interest Record Date.
Appears in 1 contract
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not not, and shall not permit any of their respective its Subsidiaries to, engage in one an Asset Sale unless
(1) the Company (or a series such Subsidiary, as the case may be) receives consideration at the time of related transactions, convey, sell, transfer, assign such Asset Sale at least equal to the Fair Market Value of the property or Equity Interests sold or otherwise dispose of, directly or indirectly, any disposed of their property, business or assets, including by merger or consolidation in such Asset Sale;
(in 2) at least 85% of the case of a Subsidiary or Unrestricted Subsidiary), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiary, whether consideration therefor received by the Company or such Subsidiary is in the Parent or one of their respective Subsidiaries or through the issuance, sale or transfer of Equity Interests by one of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
(1) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists form of cash or Cash Equivalents; providedprovided that for purposes of this Section 4.11(a), each of the following shall be deemed to be cash:
(a) the amount of any liabilities (as shown on the Company's or such Subsidiary's most recent balance sheet or in the notes thereto, excluding contingent liabilities and trade payables) of the Company or any Subsidiary (other than liabilities that with respect are by their terms subordinated to the sale Notes or any guarantee thereof) that are assumed by the transferee of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of any such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Saleproperty; and
(3b) the Parent and the Company determine in good faith that the consideration any securities, notes or other obligations received by the ParentCompany or any such Subsidiary from such transferee that are substantially contemporaneously (subject to ordinary settlement periods) converted by the Company or such Subsidiary into cash (to the extent of the cash received in that conversion);
(3) if such Asset Sale involves the disposition of Collateral, the Company or their respective Subsidiariessuch Subsidiary has complied with Section 10.04 and the Net Asset Sale Proceeds thereof shall be paid directly by the purchaser of the Collateral to the Collateral Agent for deposit into the Collateral Account, and, if any property other than cash or Cash Equivalents so deposited into the Collateral Account is included in such Net Asset Sale Proceeds, such property shall be made subject to the Lien of this Indenture and the applicable Collateral Documents; and
(4) the Company or such Subsidiary, as applicablethe case may be, equals applies the fair market value for such Net Asset SaleSale Proceeds as provided in this Section 4.11.
(b) In If the event and to the extent that immediately following any Net Asset Sale the Net Cash Proceeds (whether or not relating to Collateral) received by the Company or any of its Subsidiaries from an Asset Sale or a series of related Asset Sales are less than $10.0 million, the Parent Company may, at its option, apply any such Net Asset Sale Proceeds (whether or not relating to Collateral) within 365 days of the related Asset Sale to the acquisition of another business or the acquisition of other long-term property, in each case, in the same or a similar line of business as the Company or any of their respective its Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) was engaged in on or after the Issue Date and or any reasonable extensions or expansions thereof (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated "Replacement Assets"); provided that any Replacement Assets acquired with any Net Tangible Assets, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") Proceeds of Collateral shall be:
(1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of owned by the Company or the Parent or such Subsidiary by a Guarantor and shall not be subject to any Liens other than Permitted Liens (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or such Guarantor, as the Parent case may temporarily reduce revolving credit borrowings be, shall execute and deliver to the Collateral Agent such Collateral Documents or other instruments as shall be reasonably necessary to cause such Replacement Assets to become subject to a Lien in favor of the Collateral Agent on behalf of the Trustee, for the benefit of the Holders of the Notes, securing its obligations under the Notes or its Guarantee, as the case may be, and otherwise invest shall comply with the Net Cash Proceeds in any manner that is not prohibited by provisions of this IndentureIndenture applicable to After-Acquired Property).
(c) The accumulated If the Company does not use any portion of the Net Cash Asset Sale Proceeds from as described in Section 4.11(b) within 365 days, such unused portion of the Net Asset Sale Proceeds shall constitute "Ordinary Excess Proceeds" subject to the provisions described in this Section 4.11. In addition, if the Net Asset Sale Proceeds (whether or not relating to Collateral) received by the Company or any of its Subsidiaries in an Asset Sale or a series of related Asset Sales not applied as set forth in (b)(1) aggregates $10.0 million or (b)(2) more, such Net Asset Sale Proceeds shall constitute "Material Excess Proceeds" subject to the provisions described in this Section 4.11; provided that any Net Asset Sale Proceeds received from the sale of the Riverboat shall not constitute Material Excess Proceeds if the Company applies such Net Asset Sale Proceeds within 365 days of the Asset Sale of the Riverboat to the acquisition of a Replacement Riverboat; provided, further, that any Replacement Riverboat shall be owned by the Company or by the Guarantor that made the Asset Sale and shall not be subject to any Liens other than Permitted Liens (and the Company or such Guarantor, as the case may be, shall execute and deliver to the Collateral Agent such Collateral Documents or other instruments as shall be reasonably necessary to cause the Replacement Riverboat to become subject to a Lien in favor of the Collateral Agent on behalf of the Trustee, for the benefit of the Holders of the Notes, securing its obligations under the Notes or its Guarantee, as the case may be, and otherwise shall comply with the provisions of this Indenture applicable to After-Acquired Property). Ordinary Excess Proceeds and Material Excess Proceeds are collectively referred to as "Excess Proceeds." Within 30 "
(d) On or prior to 365 days after any such Asset Sale or Asset Sales that cause the date that the aggregate amount of Ordinary Excess Proceeds exceeds to exceed $10.0 million or within 10 million, which date shall not be prior to 390 days after of the Asset Sale that generated such receipt of any Material Excess ProceedsProceeds (taking into account any time period for reinvestment allowed by the first proviso of the preceding paragraph), the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company will be required to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer or offers (subject only to conditions required by applicable law, if any) (pro rata in proportion to the respective principal amounts (or accreted values in the case of Indebtedness issued with each an original issue discount) of the Notes and such other Indebtedness then outstanding) (the "Asset Sale Offer"), on a pro rata basis to all holders of First Priority Notes and to all holders of First Priority Pari Passu Indebtedness (to the extent such person's collateral is subject to such Asset Sale) at a to purchase the maximum principal amount of First Priority Notes and First Priority Pari Passu Indebtedness, to the extent applicable, that may be purchased out of the aggregate amount of such Ordinary Excess Proceeds and/or Material Excess Proceeds, as the case may be.
(e) The offer price of any Asset Sale Offer in the case of any Ordinary Excess Proceeds will be equal to 100% of the principal amount (or accreted value Accreted Value thereof and in the case of Indebtedness issued with an original issue discount) (any Material Excess Proceeds will be 102% of the "Asset Sale Offer Price") together with Accreted Value thereof, in each case, plus accrued and unpaid interest (and Liquidated DamagesAdditional Interest, if any) thereon, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Periodpurchase, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered will be payable in cash in accordance with the provisions hereof procedures set forth in the First Priority Indenture.
(on a pro rata basis if f) Solely to the Asset Sale Offer Amount extent permitted by the First Priority Indenture or to the extent that no First Priority Notes or First Priority Pari Passu Indebtedness is insufficient then outstanding, to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of First Priority Notes and such other pari passu First Priority Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the aggregate Excess Proceeds, the Company shall be required to make an offer or offers (each a "Residual Asset Sale Offer"), within ten days of the earlier of (x) the completion of the Asset Sale Offer Amount, or (y) the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the date Residual Excess Proceeds (as defined below) are received, on a pro rata basis to all Holders of Notes to purchase the maximum principal amount shall of Notes that may be reset to zero.
(e) Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1) the Company or the Parent may and their respective Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(2) the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn purchased out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, Ordinary Excess Proceeds not paid out in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. 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 Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. If the payment date in connection with an Asset Sale Offer hereunder is on or after (the "Residual Ordinary Excess Proceeds") and/or the Material Excess Proceeds not paid out in an interest payment Record Date Asset Sale Offer (the "Residual Material Excess Proceeds" and, together with the Residual Ordinary Excess Proceeds, the "Residual Excess Proceeds") as the case may be.
(g) The offer price of any Residual Asset Sale Offer in the case of any Residual Ordinary Excess Proceeds shall be equal to 100% of the principal amount thereof and on or before in the associated Interest Payment Datecase of any Residual Material Excess Proceeds will be 102% of the principal amount thereof, any in each case, plus accrued and unpaid interest (and Liquidated DamagesAdditional Interest, if any) due on such Interest Payment Date thereon, if any, to the date of purchase, and shall be paid payable in cash in accordance with the procedures set forth herein.
(h) Upon the completion of any Asset Sale Offer, any remaining Excess Proceeds shall be deposited in the Open Market Repurchase Account to the Person extent required by the First Priority Indenture or used for any purpose not otherwise prohibited by the First Priority Indenture, and the amount of Excess Proceeds shall then be reset at zero. Upon the completion of any Residual Asset Sale Offer, any remaining Residual Excess Proceeds may be used by the Issuers for any purpose not prohibited by this Indenture, and the amount of Residual Excess Proceeds shall then be reset at zero.
(i) All Net Asset Sale Proceeds of any Collateral in whose name a Note is registered at respect of any Asset Sale, pending their application in accordance with this Section 4.11 or the close of business on such Record Daterelease thereof in accordance with Sections 10.04, 10.05 and 11.06, shall be deposited in the Collateral Account.
Appears in 1 contract
Sources: Indenture (Trump Indiana Inc)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not not, and shall not permit any of their respective Subsidiaries Restricted Subsidiary to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose ofand each Restricted Entity shall not, directly or indirectly, consummate any Asset Disposition unless:
(1) the Company or such Restricted Entity receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration thereof received by the Company or such Restricted Entity is in the form of cash, Temporary Cash Investments or Designated Noncash Consideration; provided, however, that the amount of any Designated Noncash Consideration received by the Company or any Restricted Entity in such Asset Disposition having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (2) at the time of determination, shall not exceed an amount equal to the greater of (x) $25 million and (y) 2.5% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; provided further that the amount of:
(a) any liabilities of the Company or any Restricted Entity of the Issuer (other than Subordinated Obligations) that are assumed by the transferee of any such assets,
(b) any notes or other obligations or other securities or assets received by the Company or such Restricted Entity of the Company from such transferee that are converted by the Company or such Restricted Entity of the Company into cash within 180 days of the receipt thereof (to the extent of the cash received), and
(c) any Indebtedness of a Restricted Entity (other than Subordinated Obligations) that is no longer a Restricted Entity as a result of the Asset Disposition shall be deemed to be cash for the purposes of this provision;
(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or such Restricted Entity, as the case may be:
(A) first, to the extent the Company or such Restricted Entity elects, to acquire Additional Assets or improve Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that the Company shall have an additional six months to apply such Net Available Cash pursuant to this clause (A) if it shall have entered into a binding acquisition or purchase contract in respect of Additional Assets prior to the expiration of such one-year period; provided further that if the Net Available Cash from any Asset Disposition of an FCC License, Industry Canada License or any similar telecommunications license or any Capital Stock of the FCC License Subsidiary, SkyTerra Canada Inc. or any other entity holding a telecommunications license is in excess of $10.0 million, the Net Available Cash from such Asset Disposition may not be applied as provided in this clause (A) and shall be immediately applied as required in clause (b) below; and
(B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above:
(1) to the extent required by the terms of the 14% Senior Secured Notes or any other secured Indebtedness of either Issuer or any Restricted Entity, make an offer to the holders of the 14% Senior Secured Notes and the holders of such other secured Indebtedness that requires such an offer to purchase, prepay or repay the 14% Senior Secured Notes and such other secured Indebtedness pursuant to the terms thereof; and
(2) to the extent that such Net Available Cash is remaining after application in accordance with Section 4.10(a)(3)(B)(1) above, to make an offer to holders of the Notes (and to holders of other Pari Passu Indebtedness that requires such an offer) to purchase Notes (and such other Pari Passu Indebtedness that require such an offer) pursuant to and subject to the conditions contained in this Indenture; provided, that such offer to holders of Notes is for no less than the Noteholders’ pro rata amount of such Net Available Cash (based on the then outstanding principal amount of the Notes outstanding and the principal amount (or accreted value if issued with discount) of such other Pari Passu Indebtedness); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (3)(B) above, the Issuers or such Restricted Entity shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; provided, however, that the prior proviso shall not affect the ability of the Company of the Restricted Entities to incur Indebtedness under Section 4.06(b). Pending application of Net Available Cash pursuant to this covenant, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness, unless required to do otherwise pursuant to the terms of the 14% Senior Secured Notes or any other outstanding secured Indebtedness of either Issuer or Restricted Entity.
(b) In the event of an Asset Disposition that requires the Issuers to make an offer to purchase the Notes (and other Indebtedness) pursuant to Section 4.10(a)(3)(B)(2) the Issuers shall purchase Notes tendered pursuant to an offer by the Issuers for the Notes (and such other Indebtedness) (the “Offer”) at a purchase price of 100% of their propertythen outstanding principal amount (such other Indebtedness at a purchase price of 100% of its principal amount or, business or assetsin the event such other Indebtedness was issued with significant original issue discount, including 100% of the accreted value thereof) without premium, plus accrued but unpaid interest (or, in respect of such other Indebtedness, such lesser price, if any, as may be provided for by merger or consolidation the terms of such Indebtedness) in accordance with the procedures set forth in Section 4.10(c). If the aggregate purchase price of the Notes (and such other Indebtedness) tendered exceeds the Net Available Cash allotted to their purchase, the Trustee will select the Notes and such other Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of a Subsidiary the Notes will be denominations of $1,000 principal amount or Unrestricted Subsidiarymultiples thereof. The Company shall not be required to make such an Offer to purchase Notes (and other Indebtedness) pursuant to Section 4.10(a)(3)(B)(2) if the Net Available Cash available therefrom is less than $15.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). To the extent that the aggregate amount of Notes and other Indebtedness tendered is less than the Net Available Cash required to be used to make an Offer to the holders of Notes and such Indebtedness, the Company may use such excess Net Available Cash for any other purpose not prohibited by this Indenture.
(c) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer pursuant to Section 4.10(a)(3)(B)(2), the Company shall deliver to the Trustee and send, by first-class mail to each holder, a written notice stating that the holder may elect to have its Notes purchased by the Issuers either in whole or in part (subject to prorating as described in Section 4.10(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 principal amount, at the applicable purchase price set forth in Section 4.10(b). The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the “Purchase Date”) and shall contain such information concerning the business of the Issuers which the Issuers in good faith believe will enable such holders to make an informed decision and all instructions and materials necessary to tender Notes pursuant to the Offer, together with the information contained in clause (3).
(1) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officer’s Certificate as to (A) the amount of the Offer (the “Offer Amount”), including information as to any sale Pari Passu Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.10(a) and (b). On such date, the Company shall irrevocably deposit with the Trustee or with a Paying Agent in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other transfer Pari Passu Indebtedness, the portion of the deposit described in the preceding sentence that is applicable to such other Pari Passu Indebtedness may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the “Offer Period”), the Company shall deliver to the Trustee for cancellation the Notes or issuance portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of any Equity Interests payment) to each tendering holder in the amount of any Subsidiary, whether the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Offer Amount applicable to the Notes, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.10.
(2) Holders electing to have Notes purchased shall be required to surrender the Notes, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Parent Company receives not later than one Business Day prior to the Purchase Date, a facsimile transmission or one letter setting forth the name of their respective Subsidiaries the holder, the principal amount of the Notes which were delivered for purchase by the holder and a statement that such holder is withdrawing his election to have such Notes purchased. Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(3) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officer’s Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section. Notes shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the issuancesurrendering holder.
(d) The Company will not, sale or transfer of Equity Interests by one of the Company's Subsidiaries or Unrestricted and will not permit any Restricted Subsidiary to, and including each Restricted Entity will not, engage in any sale and leaseback transaction (any of the foregoing, an "Asset Sale")Swaps, unless:
(1) at least 75% the time of the total consideration for entering into such Asset Sale or series of related Swap and immediately after giving effect to such Asset Sales consists of cash or Cash Equivalents; providedSwap, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on as a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1) the Company or the Parent may and their respective Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalentsconsequence thereof;
(2) the Company and Related Business Assets that are the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose subject of assets pursuant to and in accordance with Section 5.1such Asset Swap have a substantially comparable fair market value;
(3) in the event such Asset Swap involves the transfer by the Company and or any Restricted Entity of assets having an aggregate fair market value, as determined by the Parent may and their respective Subsidiaries may sell or dispose Board of damagedDirectors in good faith, worn out or other obsolete personal property in excess of $10 million, the ordinary course terms of business so long as such property is no longer necessary for the proper conduct Asset Swap have been approved by a majority of the Company's or members of the Parent's business or the business Board of such Subsidiary, as applicable;Directors; and
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;cash received shall be applied in accordance with Section 4.10(a)(3).
(5e) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. 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 Section 4.134.10, the Company's compliance or Issuers will comply with the compliance of any of the Company's subsidiaries with such applicable securities laws and regulations shall and will not in be deemed to have breached its obligations hereunder and of itself cause a breach of the Company's obligations under this Section 4.13. If the payment date in connection 4.10 by virtue of its compliance with an Asset Sale Offer hereunder is on such securities laws 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Dateregulations.
Appears in 1 contract
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not Issuer will not, and shall will not permit any of their respective Subsidiaries Restricted Subsidiary to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, consummate any Asset Disposition unless (i) the Issuer or such Restricted Subsidiary receives consideration at the time of their propertysuch Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), business or assetsas determined in good faith by the Board of Directors, including by merger or consolidation of the shares and assets subject to such Asset Disposition and (ii) except in the case of a Subsidiary or Unrestricted Subsidiary)Tower Asset Exchange, and including any sale or other transfer or issuance of any Equity Interests of any Subsidiary, whether by the Company or the Parent or one of their respective Subsidiaries or through the issuance, sale or transfer of Equity Interests by one of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
(1) at least 75% of the total consideration for thereof received by the Issuer or such Asset Sale or series of related Asset Sales consists Restricted Subsidiary is in the form of cash or cash equivalents. Within 365 days after the receipt of any Net Available Cash Equivalentsfrom an Asset Disposition, the Issuer or the applicable Restricted Subsidiary may apply such Net Available Cash to: (A) prepay, repay, redeem or purchase Indebtedness (other than Disqualified Stock) of a Restricted Subsidiary (provided, that the applicable Restricted Subsidiary also may prepay, repay, redeem or purchase its own outstanding Indebtedness) or Senior Indebtedness (in each case other than Indebtedness owed to the Issuer or an Affiliate of the Issuer); (B) acquire all or substan- tially all of the assets of an entity engaged in a Permitted Business; (C) acquire Voting Stock of an entity engaged in a Permitted Business from a Person that is not a Subsidiary of the Issuer; provided, that (x) after giving effect thereto, the Issuer or its Restricted Subsidiary owns a majority of such Voting Stock and (y) such acquisition is otherwise made in accordance with this Indenture, including, without limitation, Section 4.5; or (D) make a capital expenditure or acquire other long-term assets that are used or useful in a Permitted Business. To the extent of the balance of such Net Available Cash after application in accordance with clauses (A), (B), (C) or (D), the Issuer shall make an offer to all holders of Notes and all holders of other Indebtedness that is PARI PASSU with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the sale proceeds of one or more hotel properties, up sales of assets to 75% purchase the maximum principal amount of Notes and such other PARI PASSU Indebtedness that may be purchased out of the consideration Net Available Cash subject to, the conditions set forth below. Notwithstanding the foregoing provisions, the Issuer and its Restricted Subsidiaries shall not be required to apply any Net Available Cash in accordance herewith except to the extent that the aggregate Net Available Cash from all Asset Dispositions which are not applied in accordance with this covenant exceeds $10.0 million. Pending application of Net Available Cash pursuant to this covenant, such Net Available Cash shall be invested in Permitted Investments or may consist be used to temporarily reduce revolving credit borrowings under a Credit Facility. For the purposes of this Section 4.7(a), the following are deemed to be cash: (x) the assumption by the transferee of Indebtedness of the purchaser Issuer (other than Disqualified Stock of the Issuer and other than Indebtedness that is subordinated to the Notes) or Indebtedness of any Restricted Subsidiary and the release of the Issuer or such hotel properties so long as Restricted Subsidiary from all liability on such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to in connection with such Asset SaleDisposition; and
(3y) the Parent and the Company determine in good faith that the consideration securities received by the Parent, Issuer or any Restricted Subsidiary from the Company transferee that are converted by the Issuer or such Restricted Subsidiary into cash within 20 days of the applicable Asset Disposition (to the extent of the cash received); and (z) 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 respective Subsidiaries, as applicable, equals terms subordinated to the fair market value for Notes or any guarantee thereof) that are assumed by the transferee of any such Asset Saleassets pursuant to a customary novation agreement that releases the Issuer or any such Restricted Subsidiary from further liability.
(b) In the event and of an Asset Disposition that requires the purchase of Notes pursuant to paragraph (a) of this Section 4.7, the extent that immediately following any Asset Sale the Net Cash Proceeds received Issuer will be required to purchase Notes tendered pursuant to an offer by the Company or Issuer for the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom Notes (the "Asset Sale Amount") shall be:
(1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "Asset Sale OfferOFFER") at a purchase price of 100% of the their principal amount as of the date of purchase (or accreted value in the case of Indebtedness issued with an original issue discountwithout premium) (the "Asset Sale Offer Price") together with plus accrued and unpaid interest and Liquidated Damages, if any, to the date of paymentpurchase in accordance with the procedures (including prorating in the event of oversubscription) set forth in this Indenture. Each If the aggregate purchase price of Notes tendered pursuant to the Offer is less than the Net Available Cash allotted to the purchase of the Notes, the Issuer may use any remaining Net Available Cash for general corporate purposes not otherwise prohibited by this Indenture. If the aggregate purchase price of the Notes and other PARI PASSU Indebtedness tendered into such Offer exceeds the amount of Net Available Cash, the Trustee will select the Notes and such other PARI PASSU Indebtedness to be purchased on a pro rata basis and as set forth in paragraph (c) of this Section 4.7. Upon completion of any required Offer to the holders of the Notes, the amount of Net Available Cash will be reset at zero. The Issuer shall not be required to make an Offer for Notes pursuant to this Section 4.7 if the Net Available Cash available therefor (after application of the proceeds as provided in the second paragraph of Section 4.7(a)) are less than $10.0 million for all Asset Sale Dispositions (which lesser amounts shall be carried forward for purposes of determining whether an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition).
(1) Promptly, and in any event within 30 days after the Issuer becomes obligated to make an Offer, the Issuer shall remain open for 20 Business Days following its commencement be obligated to deliver to the Trustee and send, by first-class mail to each Holder, at the address appearing in the security register, a written notice stating that the Holder may elect to have his Notes purchased by the Issuer either in whole or in part (subject to prorationing as hereinafter described in the event the Offer is oversubscribed) in integral multiples of $1,000 of principal amount, at the applicable purchase price. The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Asset Sale PURCHASE DATE") and shall contain all instructions and materials necessary to tender Notes pursuant to the Offer.
(2) Not later than the date upon which written notice of an Offer Periodis delivered to the Trustee as provided below, the Issuer shall deliver to the Trustee an Officer's Certificate as to (i) the amount of the Offer (the "OFFER AMOUNT"), (ii) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (iii) the compliance of such allocation with the provisions of Section 4.7(a). Upon the expiration of the period for which the Offer remains open (the "OFFER PERIOD"), the Issuer shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Issuer. Not later than 11:00 a.m. (New York City time) on the Purchase Date, the Issuer shall irrevocably deposit with the Trustee or with a paying agent (or, if the Issuer is acting as Paying Agent, segregate and hold in trust) an amount in cash sufficient to pay the Offer Amount for all Notes properly tendered to, not withdrawn from and accepted by the Issuer. The Trustee shall, on the Purchase Date, mail or deliver payment to each tendering Holder in the amount of the purchase price.
(3) Holders electing to have a Note purchased will be required to surrender the Note, together with all necessary endorsements and other appropriate materials duly completed, to the Issuer at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders will be entitled to withdraw their election in whole or in part if the Trustee or the Issuer receives not later than one Business Day prior to the Purchase Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note (which shall be $1,000 in principal amount or an integral multiple thereof) which was delivered for purchase by the Holder, the aggregate principal amount of such Note (if any) that remains subject to the original notice of the Offer and that has been or will be delivered for purchase by the Issuer and a statement that such Holder is withdrawing his election to have such Note purchased. If at the expiration of the Offer Period the aggregate principal amount of Notes and other PARI PASSU Indebtedness surrendered by Holders and the holders of other PARI PASSU Indebtedness exceeds the amount of Net Available Cash, the Trustee shall select the Notes and other PARI PASSU Indebtedness to be purchased on a PRO RATA basis in accordance with the provisions of Section 3.2 (with such adjustments as may be deemed appropriate by the Trustee so that only securities in denominations of $1,000 principal amount, or integral multiples thereof, of Notes shall be purchased). Holders whose Notes are purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
(4) A Note shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering Holder.
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if anyThe Issuer will comply, to the purchase of all Indebtedness properly tendered in accordance extent applicable, with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tenderedrequirements of Section 14(e) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1) the Company or the Parent may and their respective Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(2) the Company and the Parent may and their respective Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. 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 any other securities laws or regulations in connection with the rules and regulations thereunder and all other applicable Federal and state securities lawsrepurchase of Notes pursuant to this covenant. To the extent that the provisions of any securities laws or regulations conflict with provisions of this covenant, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this covenant by virtue thereof.
(e) The provisions of this Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations 4.7 shall not in and apply to any transaction that is permitted under the provisions of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date5.1.
Appears in 1 contract
Sources: Indenture (Spectrasite Inc)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or and the Parent Guarantors shall not not, and shall not permit any of their respective the Company's Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their property, business or assets, including by merger or consolidation (in the case of a Guarantor or a Subsidiary or Unrestricted SubsidiarySubsidiary of the Company), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiaryof the Company's Subsidiaries or Unrestricted Subsidiaries, whether by the Company or the Parent or one of their respective its Subsidiaries or Unrestricted Subsidiaries or through the issuance, sale or transfer of Equity Interests by one of the Company's Subsidiaries or Unrestricted Subsidiary Subsidiaries and including any sale and sale- leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
, with respect to any Asset Sale or related series of Asset Sales involving securities, property or assets with an aggregate fair market value in excess of $5,000,000, (1a) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2b) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
, and (3c) the Parent and the Company determine Company's Board of Directors determines in good faith that the consideration received by the Parent, the Company will be receiving or their respective Subsidiariessuch Subsidiary will be receiving, as applicable, equals the fair market value for such Asset Sale. For purposes of the preceding sentence, total consideration received means the total consideration received for such Asset Sale minus the amount of (a) Purchase Money Indebtedness secured solely by the assets sold and assumed by a transferee; provided, that the Company and its Subsidiaries are fully released from obligations in connection therewith and (b) property that within 30 days of such Asset Sale is converted into cash or Cash Equivalents; and further provided, that such cash and Cash Equivalents shall be treated as Net Cash Proceeds attributable to the original Asset Sale for which such property was received).
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within Within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) used (i) to retire Purchase Money Indebtedness secured by the asset which was the subject of the Asset Sale; or (ii) to retire and permanently reduce Indebtedness incurred under the Credit Facility; provided, that in the case of a revolver or similar arrangement that makes credit available, such commitment is permanently reduced by such amount; or
(2) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation obligations and securities) which shall in the good faith reasonable judgment of the Company's Board of Directors will immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or.
(2c) used to retire Indebtedness incurred under The accumulated Net Cash Proceeds from Asset Sales and from any Event of Loss not applied as set forth in the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. preceding paragraph shall constitute "Excess Proceeds." Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest or use for general corporate purposes (other than Restricted Payments that are not solely Restricted Investments) the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(cd) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 days after When the date that the amount of Excess Proceeds exceeds equal or exceed $10 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds10,000,000, the Company shall apply an amount (offer to repurchase the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such Notes, together with any other Indebtedness ranking on a parity with the Notes and with similar provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (), pro rata in proportion to the respective principal amounts of such Indebtedness (or accreted values in the case of Indebtedness issued with an original issue discount) of and the Notes and such other Indebtedness then outstanding) Notes, (the "Asset Sale Offer") at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each The Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(de) Upon expiration of the Asset Sale Offer Period, the Company shall apply an amount equal to the Excess Proceeds (the "Asset Sale Offer Amount Amount") plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(ef) Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1) the Company or the Parent may and their respective its Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(2) the Company and the Parent may and their respective its Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) the Company and the Parent may and their respective its Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors its Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course each of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective its Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture;
(6) Foreign Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets to the Company, any of the Guarantors, or any other Foreign Subsidiary; and
(7) the Company and the Parent may and their respective its Subsidiaries may make Permitted Investments pursuant to clause (de) in the definition thereof and Restricted Investments permitted under that are not prohibited by Section 4.9. 4.9 hereof.
(g) All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1a) or (b)(2b) of the first paragraph of this Section 4.13. .
(h) 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 Section 4.13, the Company's compliance or the compliance of any of the Company's its subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this such Section 4.13. 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 shall Date) will be paid to the Person in whose name a Note is registered at the close of business on such Record Date.
Appears in 1 contract
Sources: Indenture (Mikohn Gaming Corp)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not will not, and shall will not permit any of their respective its Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their its property, business or assets, including by merger or consolidation (in the case of a Subsidiary or Unrestricted Subsidiaryof the Company), and including any sale or other transfer or issuance issue of any Equity Interests of any SubsidiarySubsidiary of the Company, whether by the Company or the Parent or one a Subsidiary of their respective Subsidiaries either or through the issuance, sale or transfer of Equity Interests by one a Subsidiary of the Company's Subsidiaries or Unrestricted Subsidiary , and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
unless (11)(a) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% an Asset Sale of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent Casino Rouge or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred replacement Gaming Vessel (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such Asset Salea "Replacement Vessel"), the Net Cash Proceeds therefrom (the "Asset Sale Offer Amount") shall be:
are applied (1i) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 within 240 days after the date that of such Asset Sale to the amount purchase by the Company of Excess Proceeds exceeds $10 milliona Gaming Vessel having a fair market value, which date shall not be prior as reasonably determined by the Board of Directors in good faith, at least equal to 390 the fair market value of the Casino Rouge or such Replacement Vessel immediately preceding such Asset Sale or (ii) within 270 days after the date of such Asset Sale that generated to the repurchase of the Notes, at a purchase price of 100% of the principal amount thereof, together with accrued and unpaid interest and Additional Interest, if any, thereon to the date of payment, made within 240 days of such Excess ProceedsAsset Sale and (b) with respect to an Asset Sale of any other asset, (i) the Company shall apply an amount (the "Asset Sale Offer Amount"Amount is applied (x) equal within 180 days after the date of such Asset Sale, to the Excess Proceeds optional redemption of the Notes in accordance with the terms of the Indenture and, to the repurchase extent such Indebtedness is secured by the assets sold and contains similar provisions requiring the Company to redeem such Indebtedness as a result of the applicable Asset Sale, to the redemption of Purchase Money Indebtedness or Indebtedness outstanding under the Revolving Credit Facility, 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 ranking on a parity with then outstanding or (y) within 210 days after the date of such Asset Sale, to the repurchase of the Notes and, to the extent such Indebtedness is secured by the assets sold and with contains similar provisions requiring the Company to make an offer to purchase repurchase such Indebtedness with as a result of the proceeds from such applicable Asset Sale, to the repurchase of Purchase Money Indebtedness or Indebtedness outstanding under the Revolving Credit Facility (the "Asset Sale pursuant to a cash offer (subject only to conditions required by applicable lawOffer"), if any) (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) (the "Asset Sale Offer") , at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) thereof (the "Asset Sale Offer Price") ), together with accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of payment. Each , made within 180 days of such Asset Sale Offer shall remain open for 20 Business Days or (ii) within 180 days following its commencement (the "such Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer PeriodSale, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tenderedinvested in (x) at fixed assets and property (other than notes, bonds and securities) which in the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To good faith reasonable judgment of the extent that the aggregate amount Board of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation Directors will immediately constitute or be a part of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) Notwithstanding, and without complying with, the other provisions a Related Business of this Section 4.13:
(1) the Company or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction or (y) any Person engaged in a Related Business if as a result of such investment such Person becomes a Wholly-owned Subsidiary of the Parent may and their respective Subsidiaries mayCompany or such Person is immediately merged with or into the Company or a Wholly-owned Subsidiary of the Company, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(2) at least 85% of the Company and the Parent may and their respective Subsidiaries may conveyconsideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;
(3) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a PRO FORMA basis, to, such Asset Sale, and (4) the Board of Directors of the Company and determines in good faith that the Parent may and their respective Subsidiaries may sell Company or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantors;
(5) the Company and the Parent may and their respective Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a receives fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13. Any for such 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 Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 shall be paid to the Person in whose name a Note is registered at the close of business on such Record DateSale.
Appears in 1 contract
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not and the Subsidiary Guarantors shall not not, and neither the Company nor the Subsidiary Guarantors shall permit any of their respective the Company’s Subsidiaries to, in one or a series of related transactionstransactions with respect to assets or Equity Interests that have a fair market value of $1.5 million or more, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their property, business or assets, including by merger or consolidation (in the case of a Subsidiary Guarantor or Unrestricted Subsidiaryone of the Company’s Subsidiaries), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiary, whether of the Company’s Subsidiaries or Equity Interests of any of the Company’s Unrestricted Subsidiaries owned by the Company or the Parent or one of their respective Subsidiaries or through the issuance, sale or transfer of Equity Interests by one any of the Company's ’s Subsidiaries or Unrestricted Subsidiary and including any sale and leaseback transaction (any of the foregoing, an "“Asset Sale"”), unless:
(1) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents, or Related Business Assets, except in the case of Asset Sales of Automotive Information Systems, Inc.; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;and
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine determines in good faith that the consideration received by the Parent, the Company receives or their respective Subsidiariessuch Subsidiary receives, as applicable, equals the fair market value for such Asset Sale. For purposes of clause (1) above, total consideration received means the total consideration received for such Asset Sale, minus (a) any liabilities (as shown on the Company’s or such Subsidiary’s most recent balance sheet) of the Company or any 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 agreement that releases the Company or such Subsidiary from further liability minus (b) the fair market value of property that within 30 days of such Asset Sale is converted into cash or Cash Equivalents; provided, that such cash and Cash Equivalents shall be treated as Net Cash Proceeds attributable to the original Asset Sale for which such property was received.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 Within 365 days following such Asset SaleSale or the receipt of such Net Cash Proceeds, the Net Cash Proceeds therefrom (the "“Asset Sale Amount"”) shall be:
(1) invested (or committed, pursuant to a binding commitment subject only to reasonable, customary closing conditions, to be invested, and in assets and property fact is so invested, within an additional 30 days) in Additional Assets (except in connection with the acquisition of a Subsidiary which is a Subsidiary Guarantor in a Related Business, Business other than notes, bonds, obligation and securities) or used to make Permitted Investments other than those under clauses (a), (b), and (c) under the definition of “Permitted Investments” hereof, which in the good faith reasonable judgment of the Company’s Board of Directors shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately its Subsidiaries following such transaction, ; or
(2) used to retire Indebtedness incurred under repay, prepay, redeem or repurchase the Credit Agreement Company’s Senior Debt or Senior Debt of any Guarantor and to correspondingly permanently reduce commitments (if any) with respect thereto; or
(3) applied to the amount optional redemption of the Notes in accordance with the terms of this Indenture and the repurchase and redemption of the Company’s other Indebtedness ranking on a parity with the Notes 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 permitted to be incurred pursuant to Section 4.7(b) hereofthen outstanding. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in Sections 4.13(b)(1), (b)(12) or (b)(23) hereof shall constitute "“Excess Proceeds." ”. Within 30 days after the date that the amount of Excess Proceeds exceeds $10 5.0 million, which date shall not be prior to 390 395 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount the Excess Proceeds (the "“Asset Sale Offer Amount"”) equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with similar provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "“Asset Sale Offer"”) at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "“Asset Sale Offer Price"”) together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "“Asset Sale Offer Period"”).
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use invest any remaining Net Cash Proceeds for general corporate purposes as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) . Notwithstanding, and without complying with, the other provisions of this Section 4.13:
(1) the Company or the Parent may and their respective the Company’s Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(2) the Company may and the Parent may and their respective Company’s Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.15.1 hereof;
(3) the Company may and the Parent may and their respective Company’s Subsidiaries may sell or dispose of property that is damaged, worn out out, obsolete or other obsolete personal property otherwise unsuitable for use in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable’s business;
(4) the Company and the Parent may and the Guarantors Company’s Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Subsidiary Guarantors, and Subsidiaries that are not Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to any Wholly Owned Subsidiaries;
(5) the Company and the Parent may and their respective Subsidiaries may, in each of the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
(6) the Company and the Parent may and their respective Company’s Subsidiaries may surrender or waive contract rights or settle, release or surrender contract, tort or other litigation claims or grant Liens (and permit foreclosure thereon) not prohibited by this Indenture;
(6) each of the Company’s Subsidiaries may issue Equity Interests to the Company or to a Subsidiary Guarantor;
(7) the Company may and the Company’s Subsidiaries may make Restricted Payments that are not prohibited by Section 4.9 hereof; and
(8) the Company may and the Company’s Subsidiaries may grant in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company any non-exclusive license of patents, trademarks, registrations therefor and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss shall be reinvested or used as otherwise provided above in clauses (b)(1) or (b)(2) of this Section 4.13other similar intellectual property. 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 Section 4.13, the Company's ’s compliance or the compliance of any of the Company's subsidiaries ’s Subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's ’s obligations under this Section 4.13. 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 Date) shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date.
Appears in 1 contract
Sources: Indenture (CSK Auto Corp)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not not, and shall not permit any of their respective its Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their its or its Subsidiaries’ respective property, business or assets, including by merger or consolidation (in the case of a Subsidiary or Unrestricted Subsidiaryof the Company), and including any sale or other transfer or issuance of any Equity Interests of any SubsidiarySubsidiary of the Company, whether by the Company or any Subsidiary of the Parent or one of their respective Subsidiaries Company or through the issuance, sale or transfer of Equity Interests by one a Subsidiary of the Company's Subsidiaries or Unrestricted Subsidiary Company and including any sale and leaseback transaction (any of the foregoing, an "“Asset Sale"”), unless:
(1i) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;either:
(2A) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, an amount equal to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company or their respective Subsidiaries, as applicable, equals the fair market value for such Asset Sale.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "“Asset Sale Offer Amount"”) shall be:
(1) invested in assets and property (except in connection with the acquisition of a Subsidiary which is a Guarantor in a Related Business, other than notes, bonds, obligation and securities) which shall immediately constitute or be a part of a Related Business of the Company or the Parent or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness incurred under the Credit Agreement and to permanently reduce the amount of such Indebtedness permitted to be incurred pursuant to Section 4.7(b) hereof. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (b)(1) or (b)(2) shall constitute "Excess Proceeds." Within 30 within 365 days after the date that the amount of Excess Proceeds exceeds $10 million, which date shall not be prior to 390 days after the such Asset Sale that generated such Excess Proceeds, the Company shall apply an amount (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with similar provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale (including the Existing Notes) pursuant to a cash offer (subject only to conditions required by applicable law, if any) (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) (the "“Asset Sale Offer"”) at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "“Asset Sale Offer Price"”) together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each , or
(B) within 365 days following such Asset Sale, the Asset Sale Offer Amount is
(1) invested in property or assets (other than notes, bonds, obligations and securities) which will immediately constitute or be a part of a Related Business of the Company or such Subsidiary (if it continues to be a Subsidiary) immediately following such transaction, or
(2) used to retire Indebtedness secured by the asset which was the subject of the Asset Sale, Indebtedness outstanding under the Credit Facilities or a Foreign Subsidiary Credit Agreement, or other Senior Debt, and to permanently reduce the amount of such Indebtedness under Credit Facilities or a Foreign Subsidiary Credit Agreement, to the extent such permanent reduction is required by such Credit Facility or Foreign Subsidiary Credit Agreement (and, in the case of a revolver or similar arrangement that makes credit available on a committed basis, to permanently reduce the applicable commitment(s) by such amount, to the extent that such reduction is required by such agreement, whichever is less), except that, in the case of each of the provisions of clauses (1) and (2), only proceeds from an Asset Sale of assets or capital stock of a Foreign Subsidiary may be invested in or used to retire Indebtedness of a Foreign Subsidiary,
(ii) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents,
(iii) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale, and
(iv) the Board of Directors of the Company determines in good faith that the Company received or such Subsidiary received, as applicable, fair market value for such Asset Sale.
(b) An acquisition of Notes pursuant to an Asset Sale Offer may be deferred until the accumulated Net Cash Proceeds from Asset Sales not applied as set forth in (i)(A) or (i)(B) above (the “Excess Proceeds”) exceed $20,000,000, and each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "“Asset Sale Offer Period"”).
(dc) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds for general corporate purposes as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero. For purposes of (a)(ii) above, total consideration received means the total consideration received for such Asset Sales minus the amount of (i) Indebtedness secured solely by the assets sold and assumed by a transferee; provided that the Company is and its Subsidiaries are fully released from obligations in connection therewith and (ii) property that within 30 days of such Asset Sale is converted into cash or Cash Equivalents; provided that such cash and Cash Equivalents shall be treated as Net Cash Proceeds attributable to the original Asset Sale for which such property was received.
(ed) Notwithstanding, and without complying with, the other provisions of this Section 4.13:4.12,
(1i) the Company or the Parent may and their respective its Subsidiaries may, in the ordinary course of business, ,
(aA) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and business,
(bB) liquidate Cash Equivalents;Equivalents and
(2C) liquidate securities that consist of shares of capital stock that are traded on a nationally recognized stock exchange,
(ii) the Company and the Parent may and their respective its Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.1;Article V hereof,
(3iii) the Company and the Parent may and their respective its Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of the Company or such Subsidiary, as applicable;and the Company may convey, sell, transfer, assign or otherwise dispose of assets to any Subsidiary of the Company provided such transaction is otherwise in compliance with Section 4.11, except that the Company is not required to comply with the provisions of clause (c) of such Section,
(4iv) Subsidiaries of the Company and the Parent may and the Guarantors may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any other Subsidiary of the Guarantors;Company,
(5v) the Company and the Parent may and their respective its Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;10,000,000,
(6vi) the Company and the Parent may and their respective its Subsidiaries may surrender exchange assets held by the Company or waive such Subsidiaries for assets held by or settleEquity Interests of any Person or entity; provided that (A) the assets received by the Company or such Subsidiaries in any such exchange will immediately constitute, release be a part of, or surrender tort or other litigation claims be used in, and, in the ordinary course case of business Equity Interests of another Person, such Person is engaged solely in, a Related Business of the Company or grant such Subsidiaries, (B) the Board of Directors of the Company has in good faith and acting reasonably determined that the terms of any such exchange are fair and reasonable and (C) any such exchange shall be deemed to be an Asset Sale and the Company shall be required to comply with the provisions of this Section 4.12 to the extent that the Company or any of its Subsidiaries receives cash or Cash Equivalents in such exchange,
(vii) the Subsidiaries of the Company may issue their Equity Interests to the Company or to another Subsidiary of the Company,
(viii) Permitted Liens not prohibited by this Indenture; may be granted, and
(7ix) the Company and the Parent may and their respective its Subsidiaries may make or liquidate any Restricted Payment or Permitted Investments pursuant to clause Investment that is permitted by Section 4.9 hereof.
(de) in the definition thereof and Restricted Investments permitted under Section 4.9. All Net Cash Proceeds from an Event of Loss in excess of $20,000,000 (other than the proceeds of any business interruption insurance) shall be reinvested or used as otherwise provided above in clauses (b)(1i)(A) or (b)(2i)(B) of paragraph (a) of this Section 4.13. 4 12.
(f) Any Asset Sale Offer 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 Section 4.134.12, compliance by the Company's compliance Company or the compliance of any of the Company's subsidiaries its Subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's ’s obligations under this Section 4.13. 4.12.
(g) 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 shall 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.
Appears in 1 contract
Sources: Indenture (Bio Rad Laboratories Inc)
Limitation on Sale of Assets and Subsidiary Stock. (a) The Company or the Parent shall not and shall not permit any of their respective the Company's Subsidiaries to, in one or a series of related transactions, convey, sell, transfer, assign or otherwise dispose of, directly or indirectly, any of their property, business or assets, including by merger or consolidation (in the case of a Subsidiary or Unrestricted Subsidiaryone of the Company's Subsidiaries), and including any sale or other transfer or issuance of any Equity Interests of any Subsidiaryof the Company's Subsidiaries, whether by the Company or the Parent or one of their respective Subsidiaries or through the issuance, sale or transfer of Equity Interests by one of the Company's Subsidiaries or Unrestricted Subsidiary and including any sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
(1) at least 75% of the total consideration for such Asset Sale or series of related Asset Sales consists of cash or Cash Equivalents; provided, that with respect to the sale of one or more hotel properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such hotel properties so long as such Indebtedness is secured by a first priority Lien on the hotel property or properties sold;and
(2) no Default or Event of Default shall have occurred and be continuing at the time of, or would occur after giving effect, on a pro forma basis, to such Asset Sale; and
(3) the Parent and the Company determine in good faith that the consideration received by the Parent, the Company receives or their respective Subsidiariessuch Subsidiary receives, as applicable, equals the fair market value for such Asset SaleSale (which determination shall be made by the Board of Directors if such Asset Sale is in excess of $5 million). For purposes of clause (1) above, total consideration received means the total consideration received for such Asset Sales, minus the amount of (a) Purchase Money Indebtedness secured solely by the assets sold and assumed by a transferee; provided, that the Company is and the Company's Subsidiaries are fully released from obligations in connection therewith and (b) property that within 60 days of such Asset Sale is converted into cash or Cash Equivalents; provided, that such cash and Cash Equivalents shall be treated as Net Cash Proceeds attributable to the original Asset Sale for which such property was received.
(b) In the event and to the extent that immediately following any Asset Sale the Net Cash Proceeds received by the Company or the Parent or any of their respective Subsidiaries from such Asset Sale, plus the Net Cash Proceeds of any other Asset Sale(s) which occurred (i) on or after the Issue Date and (ii) within the 360-day period proceeding such Asset Sale, exceed 10% of Adjusted Consolidated Net Tangible Assets, within Within 360 days following such Asset Sale, the Net Cash Proceeds therefrom (the "Asset Sale Amount") shall be:
(1) invested used (i) to invest in the purchase of assets and property (except in connection with other than securities) to be used by the acquisition of Company or a Subsidiary which is a Guarantor in a Related Business, (ii) to acquire Capital Stock (other than notes, bonds, obligation and securitiesDisqualified Capital Stock) which shall immediately constitute of a Subsidiary or be a part of Person engaged in a Related Business that shall become a Subsidiary immediately upon consummation of the Company such acquisition, or the Parent or such Subsidiary (if it continues to be iii) in a Subsidiarycombination of (i) immediately following such transaction, and (ii) above; or
(2) used to retire repay, prepay, redeem or repurchase (i) Purchase Money Indebtedness incurred secured by the asset which was the subject of the Asset Sale, (ii) Indebtedness outstanding under the Credit Agreement (including that in the case of a revolver or similar arrangement that makes credit available, such commitment is permanently reduced by such amount), or (iii) Indebtedness (other than Disqualified Capital Stock) of a Wholly Owned Subsidiary (other than Indebtedness owed to the Company or an Affiliate of the Company) (including that in the case of a revolver or similar arrangement that makes credit available, such commitment is permanently reduced by such amount); or
(3) applied to the pro rata repurchase or redemption of the Notes and the Company's other Indebtedness ranking on a parity with the Notes and having similar provisions requiring the Company to permanently reduce the amount of repurchase or redeem such Indebtedness permitted with the proceeds from such Asset Sale, pro rata in proportion to be incurred pursuant to Section 4.7(bthe respective principal amounts (or accreted values in the case of Indebtedness issued with an original issue discount) hereofof the Notes and such other Indebtedness then outstanding. Pending the final application of any Net Cash Proceeds, the Company or the Parent may temporarily reduce revolving credit borrowings or otherwise invest use the Net Cash Proceeds in any manner that is not prohibited by this Indenture.
(c) The accumulated Net Cash Proceeds from Asset Sales not applied as set forth in Sections 4.13(b)(1), (b)(12) or (b)(23) hereof shall constitute "Excess Proceeds." ". Within 30 days after the date that the amount of Excess Proceeds exceeds $10 15 million, which date shall not be prior to 390 days after the Asset Sale that generated such Excess Proceeds, the Company shall apply an amount the Excess Proceeds (the "Asset Sale Offer Amount") equal to the Excess Proceeds to the repurchase of the Notes and such other Indebtedness ranking on a parity with the Notes and with having similar provisions requiring the Company to make an offer to purchase such Indebtedness with the proceeds from such Asset Sale pursuant to a cash offer (subject only to conditions required by applicable law, if any) (), 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) outstanding (the "Asset Sale Offer") ), at a purchase price of 100% of the principal amount (or accreted value in the case of Indebtedness issued with an original issue discount) (the "Asset Sale Offer Price") together with accrued and unpaid interest and Liquidated Damages, if any, to the date of payment. Each Asset Sale Offer shall remain open for 20 Business Days following its commencement (the "Asset Sale Offer Period").
(d) Upon expiration of the Asset Sale Offer Period, the Company shall apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid interest and Liquidated Damages, if any, to the purchase of all Indebtedness properly tendered in accordance with the provisions hereof (on a pro rata basis if the Asset Sale Offer Amount is insufficient to purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued interest and Liquidated Damages, if any). To the extent that the aggregate accr amount of Notes and such other pari passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the Company may use any remaining Net Cash Proceeds as otherwise permitted by this Indenture and following the consummation of each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
(e) . Notwithstanding, and without complying with, the other provisions of this Section 4.13:4.13 (and without constituting an "Asset Sale" hereunder):
(1) the Company or the Parent may and their respective the Company's Subsidiaries may, in the ordinary course of business, (a) convey, sell, transfer, assign or otherwise dispose of inventory and other assets acquired and held for resale in the ordinary course of business and (b) liquidate Cash Equivalents;
(2) the Company may and the Parent may and their respective Company's Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets pursuant to and in accordance with Section 5.15.1 hereof;
(3) the Company may and the Parent may and their respective Company's Subsidiaries may sell or dispose of damaged, worn out or other obsolete personal property in the ordinary course of business so long as such property is no longer necessary for the proper conduct of the Company's or the Parent's business or the business of such Subsidiary, as applicable;
(4) the Company may convey, sell, transfer, assign or otherwise dispose of assets to any Wholly Owned Subsidiaries, and the Parent may and the Guarantors Company's Subsidiaries may convey, sell, transfer, assign or otherwise dispose of assets to the Company or the Parent or any of the Guarantorsa Wholly Owned Subsidiary;
(5) the Company may and each of the Company's Subsidiaries may surrender or waive contract rights or settle, release or surrender contract, tort or other litigation claims in the ordinary course of business or grant Liens (and permit foreclosure thereon) not prohibited ▇▇ ▇▇▇▇ Indenture;
(6) the Company may and the Parent Company's Subsidiaries may make Permitted Investments and Restricted Investments permitted by Section 4.9 hereof; and
(7) the Company may and their respective the Company's Subsidiaries may, in the ordinary course of business, convey, sell, transfer, assign, or otherwise dispose of assets (or related assets or in related transactions) with a fair market value of less than $2 million;
2.5 million per transaction (6) the Company and the Parent may and their respective Subsidiaries may surrender or waive or settle, release or surrender tort or other litigation claims in the ordinary course of business or grant Liens not prohibited by this Indenture; and
(7) the Company and the Parent may and their respective Subsidiaries may make Permitted Investments pursuant to clause (d) in the definition thereof and Restricted Investments permitted under Section 4.9related transactions). All Net Cash Proceeds from an Event of Loss (other than the proceeds of any business interruption insurance) shall be reinvested or used as otherwise provided above in clauses (b)(1Section 4.13(b)(1) or (b)(22) of this Section 4.13above. 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 federal and state securities laws. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.13, the Company's compliance or the compliance of any of the Company's subsidiaries Subsidiaries with such laws and regulations shall not in and of itself cause a breach of the Company's obligations under this Section 4.13. 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 (interest, and Liquidated Damages, if any) , due on such Interest Payment Date shall be paid on the Asset Sale Offer payment date to the Person in whose name a Note is registered at the close of business on such Record Date.
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Sources: Indenture (Dennys Corp)