Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless: (a) the Company (or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and (b) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash: (1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability; (2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay; (3) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; (4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and (5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value. (c) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the following: (1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company; (2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company; (3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or (4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 4 contracts
Samples: Indenture (Parsley Energy, Inc.), Indenture (Parsley Energy, Inc.), Indenture (Parsley Energy, Inc.)
Asset Sales. The Company Borrower will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, directly or indirectly, consummate an any Asset Sale unlessexcept:
(a) Asset Sales (including the Company Air Medical Segment Sale) subject to the following conditions:
(1) the Borrower or a such Restricted Subsidiary, as the case may be) Subsidiary receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to assets included in such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(b2) at least 75% of the aggregate total consideration received in the such Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form consists of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3) the Borrower complies with the mandatory prepayment provisions of Section 2.10 with respect to such Asset Sale; and
(4) the Net Proceeds therefrom are deposited directly in a Net Proceeds Account and held on deposit therein until reinvested or applied to repay the Loans in accordance with Section 2.10.
(b) transfers of cash or Cash Equivalents;
(c) transfers of assets (including Equity Interests) that are governed by, and made in accordance with, Section 6.13;
(d) Investments permitted under Section 6.03 and Restricted Payments permitted under Section 6.02;
(e) the creation or realization of any securitiesPermitted Lien or a disposition in connection with a Permitted Lien;
(f) transfers of obsolete, notes damaged or worn out equipment;
(g) any transfer or series of related transfers of assets with a Fair Market Value not in excess of $1,000,000 individually or $15,000,000 in the aggregate for all such transfers;
(h) any transfer of assets acquired substantially contemporaneously with such transfer;
(i) a transfer of assets (i) by the Borrower to a Restricted Subsidiary that is a Domestic Subsidiary (other than an Excluded Subsidiary), (ii) by a Restricted Subsidiary to the Borrower or to another Restricted Subsidiary that is a Domestic Subsidiary (other than an Excluded Subsidiary), and (iii) by a Restricted Subsidiary that is a Foreign Subsidiary to the Borrower or to another Restricted Subsidiary that is a Foreign Subsidiary (other than an Excluded Subsidiary);
(j) an issuance, sale, transfer or other obligations received disposition of Equity Interests (i) by a Restricted Subsidiary to the Borrower or to another Restricted Subsidiary that is a Domestic Subsidiary (other than an Excluded Subsidiary) or (ii) by a Restricted Subsidiary that is a Foreign Subsidiary to the Borrower or to another Restricted Subsidiary that is a Foreign Subsidiary (other than an Excluded Subsidiary);
(k) the sale for Fair Market Value of accounts receivable that are generated from operations conducted outside the United States by the Company Borrower or any Restricted Subsidiary from such transferee that are, within 180 days or other sales of accounts receivable in connection with the Asset Sale, converted by the Company collection or such Restricted Subsidiary into cash, to the extent of the cash received in that conversioncompromise thereof;
(4l) any Capital Stock leases of Aircraft or assets other real or personal property in the ordinary course in exchange for rental payments that were fair and adequate on the date of the kind referred to in clause (2) lease or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are property not classified as current assets under GAAP and that are presently used or useful in the Oil business of the Borrower and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries Subsidiaries;
(m) casualty event, condemnation or seizure;
(n) the unwinding, termination transfer, liquidation or novation of any Cash Management Obligations or Hedge Contract;
(o) Asset Sales in connection with any Sale and Leaseback Transaction so long as any Attributable Indebtedness is permitted pursuant to Section 6.01(q);
(p) a Person other than an Affiliate sale or disposition pursuant to the terms of the Company within the time period specified a Disclosed Existing Sublease; and
(q) Asset Sales in the preceding paragraph and such Net Proceeds are subsequently applied connection with any replacement of any parts or engine in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders terms of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such complianceAircraft Mortgages.
Appears in 3 contracts
Samples: Term Loan Credit Agreement (PHI Group, Inc./De), Term Loan Credit Agreement (Phi Inc), Credit Agreement
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(ai) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) such fair market value is determined in good faith by (a) an executive officer of the General Partner if the value is less than $20.0 million, as evidenced by an Officers’ Certificate delivered to the Trustee or (b) the Board of Directors of the General Partner if the value is $20.0 million or more, as evidenced by a resolution of such Board of Directors of the General Partner; and
(biii) except in the case of a Permitted Asset Swap, at least 75% of the aggregate consideration therefor received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provisionclause (iii), each of the following will shall be deemed to be cash:
(1A) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations Obligations received by the Company or any such Restricted Subsidiary from such transferee that are, are within 180 days of after the Asset Sale, Sale converted by the Company such Issuer or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset SaleSale (or within 90 days after such 360-day period in the event the Company enters into a binding commitment with respect to such application), the Company (or any a Restricted Subsidiary) Subsidiary may apply such Net Proceeds at its option to any combination of the followingoption:
(1i) to repay, repurchase or redeem any repay secured Indebtedness of the Company or a and/or its Restricted Subsidiary Subsidiaries and/or to satisfy all mandatory repayment obligations under the Credit Facilities arising by reason of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, such Asset Sale;
(ii) Capital Stock or to make a capital expenditure in a Permitted Business;
(iii) Indebtedness owed to an Affiliate of the Company;acquire other tangible assets that are used or useful in a Permitted Business; or
(2iv) to acquire all or substantially all of the assets, or any Capital Stock, assets of one or more other Persons primarily a Person engaged in the Oil and Gas Business, if, after giving effect to any such acquisition a Permitted Business or Equity Interests of Capital Stock, a Person engaged in a Permitted Business so long as such Person becomes or the Person to which such assets are transferred is a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered intoSubsidiary. Pending the final application of any such Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c4.07(b) above will constitute “Excess Proceeds.” ”. When the aggregate amount of Excess Proceeds exceeds $20.0 25.0 million, within five days thereof, the Company Issuers will make an offer (an “Asset Sale Offer”) Offer to all Holders of Notes and, at the Notes and option of the Issuers, all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds; provided that Notes tendered shall be given priority over any such other Indebtedness unless such other Indebtedness contains provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets in which case the Notes and such other Indebtedness will be purchased on a pro rata basis. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interestinterest and Additional Interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment datePurchase Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture, including, without limitation, the repurchase or redemption of Indebtedness of the Issuers or any Subsidiary Guarantor that is subordinated to the Notes or, in the case of any Subsidiary Guarantor, the Guarantee of such Subsidiary Guarantor. If the aggregate principal amount of Notes tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated for repurchases of Notes pursuant to the purchase of Asset Sale Offer for Notes, the Trustee will shall select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations among Holders of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)Notes. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. .
(d) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.104.07, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 4.07 by virtue of such complianceconflict.
Appears in 3 contracts
Samples: Indenture (Atlas Pipeline Partners Lp), Indenture (Atlas Pipeline Partners Lp), Indenture (Atlas Pipeline Partners Lp)
Asset Sales. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash cash, Cash Equivalents or Cash EquivalentsReplacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown recorded on the Company’s most recent consolidated balance sheet, sheet of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) liabilities), that are assumed by the transferee of any such assets pursuant to and as a novation or indemnity agreement that releases result of which the Company and its Restricted Subsidiaries are no longer obligated with respect to such liabilities or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary are indemnified against further liabilityliabilities;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents within 180 days following the closing of the Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion;
(4c) any Capital Stock or assets of the kind referred to in clause (2Section 4.10(b)(2) or Section 4.10(b)(4) hereof;
(4d) Indebtedness of Section 4.10(c)any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of such Indebtedness in connection with such Asset Sale;
(e) consideration consisting of Indebtedness of the Company or any Guarantor received from Persons who are not the Company or any Restricted Subsidiary; and
(5f) any Designated Non-cash Consideration consideration other than cash, Cash Equivalents or Replacement Assets received by the Company or such any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together Sales with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the a Fair Market Value of each item of Designated Non-cash Consideration being measured at not exceeding $10.0 million in the time received and without giving effect to subsequent changes in valueaggregate since the Issue Date.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option to any combination of the followingProceeds:
(1) to repay, repurchase or redeem any Indebtedness purchase the Notes pursuant to an offer to all Holders of Notes at a purchase price equal to 100% of the Company or principal amount thereof, plus accrued and unpaid interest to (but not including) the date of purchase (a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the “Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the CompanyOffer”);
(2) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Restricted Subsidiary of the CompanySubsidiary;
(3) to make a capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; orexpenditure;
(4) to acquire other assets that are (other than Capital Stock) not classified as current assets under GAAP and IFRS that are used or useful in the Oil and Gas a Permitted Business. The requirement ;
(5) to repurchase, prepay, redeem or repay Indebtedness (a) of clause (2) a Restricted Subsidiary which is not a Guarantor, or Indebtedness of any Guarantor that is secured by a Lien on such assets or (4b) which is pari passu in right of payment with the Notes or any Note Guarantee; provided, however, that if the Company or a Restricted Subsidiary shall so repurchase, prepay, redeem, or repay Indebtedness pursuant to Section 4.10(c4.10(b)(5)(b), the Company will make a Notes Offer for an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such pari passu Indebtedness; provided, further, that the Company shall be deemed to be have satisfied if a bona fide binding contract committing its obligation to make a Notes Offer if it otherwise equally and ratably reduces obligations under the investmentNotes through (x) open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or (y) as provided under Section 3.07 hereof; or
(6) enter into a binding commitment to apply the Net Proceeds pursuant to Section 4.10(b)(2), (b)(3) or (b)(4) above; provided that such binding commitment (or any subsequent commitments replacing the initial commitment that may be cancelled or terminated) shall be treated as a permitted application of the Net Proceeds from the date of such commitment until the earlier of (x) the date on which such acquisition or expenditure referred to therein is entered into by consummated and (y) the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate 180th day following the expiration of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. aforementioned 360 day period.
(c) Pending the final application of any Net Proceeds, the Company (or any the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c4.10(b) hereof (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes as described in Section 4.10(b)(1) or Section 4.10(b)(5) hereof shall be deemed to have been invested whether or not such Notes Offer is accepted) will constitute “Excess Proceeds.” ”. When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days ten Business Days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and may make an offer to all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 or any Note Guarantees with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase, prepay or redeem, on a pro rata basis, redeem the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interestinterest and Additional Amounts, if any, to but not including the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into (or to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, or if the aggregate amount of Notes tendered pursuant to a Notes Offer exceeds the amount of the Net Proceeds allocated to the purchase of Notesso applied, the Trustee will select the Notes and such other pari passu Indebtedness, if applicable, to be purchased on a pro rata basis (except that any Notes represented by a Note or in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by lawmanner described in Section 3.02 hereof), based on the amounts tendered (with such adjustments as may or required to be deemed appropriate by the Company so that only Notes in denominations of $2,000, prepaid or an integral multiple of $1,000 in excess thereof, will be purchased)redeemed. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(e) The Company will comply with the requirements of Rule 14e-1 under the U.S. Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Change of Control Offer, an Asset Sale Offer or a Notes Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 hereof or the Change of Control, Asset Sale or Notes Offer provisions of this Section 4.10Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or the Change of Control, Asset Sale or Notes Offer provisions of this Section 4.10 Indenture by virtue of such compliance.
Appears in 3 contracts
Samples: Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unlessunless each of the following conditions are satisfied and the Company shall have delivered to the Trustee a certificate of an Authorized Officer of the Company certifying that such conditions have been satisfied:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 7590% of the aggregate consideration therefor received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash cash, Authorized Investments or Cash EquivalentsReplacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;liability therefor; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes Notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash or Authorized Investments within ninety (90) days after such Asset Sale, to the extent of the cash or Authorized Investments received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 three hundred and sixty (360) days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Proceeds at its option to any combination of the followingCash Proceeds:
(1) to repay, repurchase or redeem repay any Indebtedness of Senior Debt in accordance with the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;applicable Senior Debt Instrument; or
(2) to acquire all make any capital expenditure or substantially all to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets); provided that (i) such capital expenditure or purchase is consummated within the later of (x) three hundred and sixty (360) days after the receipt of the assetsNet Cash Proceeds from the related Asset Sale and (y) one hundred and eighty (180) days after the date of such binding agreement and (ii) if such capital expenditure or purchase is not consummated within the period set forth in subclause (i), or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are amount not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall so applied will be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Excess Proceeds.
(c) Pending the final application of any Net Cash Proceeds, the Company (or any the applicable Restricted Subsidiary) Subsidiary may reduce Working Capital Debt or other revolving credit borrowings or otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any .
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraphs of this Section 4.10(c) 4.12 will constitute “Excess Proceeds.” When If on any date, the aggregate amount of Excess Proceeds exceeds $20.0 million200,000,000, then within five days thereoften (10) Business Days after such date, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu Offer in accordance with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds3.09. The offer price or prepayment amount in any Asset Sale Offer will be equal to 100% of the principal amount, amount of the Notes plus accrued and unpaid interestinterest and to, if anybut excluding, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company or any and its Restricted Subsidiary Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 5.01 and not by the provisions of this Section 4.12.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.104.12, or compliance with the provisions of Section 3.09 or this Section 4.12 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 4.12 by virtue of such compliance.
(g) If the Trustee, on behalf of the Holders, receives any Net Cash Proceeds applied to the prepayment of Senior Debt and this Indenture does not require the Company to make an Asset Sale Offer pursuant to this Section 4.12, the Company shall instruct the Trustee to deposit such proceeds in the Construction Account or the Revenue Account, as applicable, and the Trustee shall be required to make such deposit.
(h) Pending their application all Net Cash Proceeds while held by the Company in an Account will be invested as Authorized Investments in which the Security Trustee has a perfected Security Interest for the benefit of the Secured Parties, subject only to Permitted Liens. The Company will grant to the Security Trustee, on behalf of the Secured Parties, a security interest, subject only to Permitted Liens, on any property or assets purchased, rebuilt, repaired, replaced or constructed with such Excess Proceeds on the terms set forth in the Indenture and the Security Documents.
Appears in 3 contracts
Samples: Indenture (Cheniere Corpus Christi Holdings, LLC), Indenture (Cheniere Corpus Christi Holdings, LLC), Indenture (Cheniere Corpus Christi Holdings, LLC)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale Sale, unless:
(a) the Company (or a any of its Restricted SubsidiarySubsidiaries, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture Issue Date is in the form of cash or Cash Equivalents. For the purposes of this provisionSection 4.16(b) and for no other purpose, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any of its Restricted Subsidiary Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed assumed, cancelled or otherwise forgiven by the transferee of any such assets pursuant to a novation novation, indemnity or indemnity other agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any of its Restricted Subsidiary Subsidiaries where the Company or such Restricted Subsidiary retains an interest in such property, the aggregate costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which that the transferee (or an Affiliate thereoftherefor) agrees to pay;
(3) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2Section 4.16(c)(2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (eSection 4.16(b)(5), not to exceed an amount equal to 5.03.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any one or more of its Restricted Subsidiary) Subsidiaries may apply an amount equal to the amount of such Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase or redeem any Indebtedness of the Company or a any Restricted Subsidiary (other than Indebtedness that is contractually subordinated in right of payment to Indebtedness of the Company or a Subsidiary Guarantor), in each case owing to a Person other than the Company, other than (i) Indebtedness of an Issuer any Restricted Subsidiary or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companyany Parent Entity;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any of its Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. .
(d) The requirement requirements of clause (2Section 4.16(c)(2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing commitment to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract commitment within 180 days following the date such agreement commitment is entered into. .
(e) Pending the final application of any Net Proceeds, the Company (or any of its Restricted Subsidiary) Subsidiaries may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any .
(f) Net Proceeds from Asset Sales that are not applied or invested as provided in paragraphs (c) and (d) of this Section 4.10(c) 4.16 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 100.0 million, within five days thereofthereof (or earlier, at the Company’s option), the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders Holders of other Indebtedness that is ranks pari passu in right of payment with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay or redeem such Indebtedness with the proceeds of sales of assets assets, to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Notes and other Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to to, but excluding, the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment dateInterest Payment Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any of its Restricted Subsidiary Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by lawrequire), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(g) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Change of Control Offer, Alternate Offer or an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 3.09, Section 4.15 or this Section 4.104.16, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 3.09, Section 4.15 or this Section 4.10 4.16 by virtue of such compliance.
Appears in 3 contracts
Samples: Indenture (Permian Resources Corp), Indenture (Permian Resources Corp), Indenture (Permian Resources Corp)
Asset Sales. (a) The Parent Guarantor and the Company will not, and the Parent Guarantor will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale (other than an Event of Loss), unless:
(a1) the Company (Company, the Parent Guarantor or a the Restricted Subsidiary, as the case may be) , receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received in the Asset Sale by the Company Company, the Parent Guarantor or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalentscash. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the CompanyParent Guarantor’s most recent consolidated balance sheet, of the Company Parent Guarantor or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company Parent Guarantor or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations Obligations received by the Company Parent Guarantor or any such Restricted Subsidiary from such transferee that are, within 180 30 days of the Asset Salereceipt thereof, converted by the Company Parent Guarantor or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;; and
(4C) any Capital Stock stock or assets of the kind referred to in clause (2Section 4.10(b)(2) or (4) of Section 4.10(c4.10(b)(4); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset SaleSale (including an Event of Loss), the Company (Company, the Parent Guarantor or any the applicable Restricted Subsidiary) , as the case may be may apply such Net Proceeds at its option to any combination of the followingProceeds:
(1) to repayrepay (a) Indebtedness Incurred under Section 4.09(b)(1) and Indebtedness that is secured under clause (25) of the definition of “Permitted Liens”, repurchase or redeem any (b) other Indebtedness of the Company or a Restricted Subsidiary Guarantor secured by property and assets that do not constitute Collateral that is the subject of such Asset Sale, and, in each case, if the CompanyIndebtedness repaid is revolving credit Indebtedness, other than to correspondingly reduce commitments with respect thereto, (ic) Indebtedness of an Issuer or a Guarantor Restricted Subsidiary that is subordinated to not a Subsidiary Guarantor or (d) the Notes or the Note Guarantees2019 Notes pursuant to the redemption provisions of this Indenture or the 2019 Notes Indenture, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companyas applicable;
(2) to acquire all or substantially all of the assetsassets of another Permitted Business, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas a Person undertaking another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Restricted Subsidiary of the CompanyParent Guarantor (provided that (a) such acquisition funded with any proceeds from an Event of Loss occurs within the date that is 545 days after receipt of the Net Proceeds from the relevant Event of Loss to the extent that a binding agreement to acquire such assets or Capital Stock is entered into on or prior to the date that is 360 days after receipt of the Net Proceeds from the relevant Event of Loss, and (b) if such acquisition is not consummated within the period set forth in clause (a), the Net Proceeds not so applied will be deemed to be Excess Proceeds);
(3) to make a capital expenditures in respect expenditure (provided that any such capital expenditure funded with any proceeds from an Event of Loss occurs within the date that is 545 days after receipt of the Company’s Net Proceeds from the relevant Event of Loss to the extent that a binding agreement to make such capital expenditure is entered into on or any Restricted Subsidiaries’ Oil and Gas Businessprior to the date that is 360 days after receipt of the Net Proceeds from the relevant Event of Loss); or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business (provided that (a) such acquisition funded from an Event of Loss occurs within the Oil date that is 545 days after receipt of the Net Proceeds from the relevant Event of Loss to the extent that a binding agreement to acquire such assets is entered into on or prior to the date that is 360 days after receipt of the Net Proceeds from the relevant Event of Loss, and Gas Business. The requirement of (b) if such acquisition is not consummated within the period set forth in clause (a), the Net Proceeds not so applied will be deemed to be Excess Proceeds); or enter into a binding commitment regarding clauses (2), (3) or (4) above (in addition to the binding commitments expressly referenced in those clauses), provided that such binding commitment shall be treated as a permitted application of Section 4.10(cNet Proceeds from the date of such commitment until the earlier of (x) the date on which such acquisition or expenditure is consummated and (y) the 180th day following the expiration of the aforementioned 360-day period. To the extent such acquisition or expenditure is not consummated on or before such 180th day and the Company, the Parent Guarantor or such Restricted Subsidiary shall not have applied such Net Proceeds pursuant to clauses (2), (3) or (4) above on or before such 180th day, such commitment shall be deemed not to be satisfied if have been a bona fide binding contract committing to make the investmentpermitted application of Net Proceeds, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. will constitute Excess Proceeds.
(c) Pending the final application of any Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this Section 4.10(c) 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 US$5.0 million, within five ten (10) days thereof, the Company will shall make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes and secured by the Collateral containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interestinterest and Additional Amounts, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee Company will select the purchase all tendered Notes to be purchased and such other pari passu Indebtedness on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)under Section 3.02. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and or regulations are applicable in connection with each the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliancethereof.
Appears in 3 contracts
Samples: Indenture (STUDIO CITY INTERNATIONAL HOLDINGS LTD), Indenture (STUDIO CITY INTERNATIONAL HOLDINGS LTD), Indenture (Melco Crown Entertainment LTD)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an any Asset Sale Sale, unless:
(a1) the consideration received by the Company (or a such Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale Subsidiary is at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; , and
(b2) at least 7575.0% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form consists of cash or Cash Equivalents. For Equivalents or Replacement Assets; provided that, with respect to the sale of one or more Properties, up to 75.0% of the consideration may consist of Indebtedness of the purchaser of such Properties so long as such Indebtedness is secured by a first priority Lien on the Properties sold; provided further that, for purposes of this provisionclause (2), each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, liabilities of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant and for which either (a) the Company and any such Restricted Subsidiaries have been validly released by the creditors or (b) the transferee and/or an Affiliate thereof has agreed in writing to a novation or indemnity agreement that releases fully indemnify the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liabilitySubsidiaries;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, evidence of Indebtedness, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cash, to the extent cash or Cash Equivalents within 180 days of the cash received in that conversion;
(4) any Capital Stock or assets consummation of the kind referred to in clause (2) or (4) of Section 4.10(c)such Asset Sale; and
(5C) any Designated Non-cash Consideration received by the Company Issuers or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e)C) that is at that time outstanding, not to exceed the greater of $250.0 million and an amount equal to 5.02.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time Total Assets, as of receipt any date of such Designated Non-cash Consideration)Incurrence, with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company will or will cause such Net Cash Proceeds (or any Restricted Subsidiary) may apply an amount equal to the amount of such Net Proceeds at its option Cash Proceeds) to any combination of the followingbe applied to:
(1) (i) make any repayments of Pari Passu Lien Obligations as required pursuant to repaythe Park Credit Agreements during the Covenant Relief Period (as defined in the Park Credit Agreements) thereunder (without obligation to permanently reduce commitments with respect thereto unless required under the Park Credit Agreements) and (ii) thereafter, permanently reduce Obligations constituting Pari Passu Lien Obligations and, if the Indebtedness repaid is revolving credit facilities or other similar Indebtedness, to correspondingly permanently reduce commitments with respect thereto (other than Obligations owed to the Company or a Restricted Subsidiary); provided that (x) to the extent the terms of Pari Passu Lien Obligations (other than Obligations under the Notes) require that such Pari Passu Lien Obligations are repaid with the Net Cash Proceeds from an Asset Sale prior to repayment of other Indebtedness (including the Notes), the Company and the Restricted Subsidiaries shall be entitled to repay such other Pari Passu Lien Obligations prior to repaying Obligations under the Notes and (y) except as provided in the foregoing clause (x), if the Company or any Restricted Subsidiary shall so reduce Pari Passu Lien Obligations, the Company will, equally and ratably, reduce Obligations under the Notes pursuant to Section 3.07 through open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth herein) to all Holders to purchase their Notes at a price equal to 100% of the principal amount thereof, plus accrued and unpaid interest on the principal amount of Notes so purchased;
(2) fund all or a portion of an optional redemption of the Notes pursuant to Section 3.07 hereof or repurchase the Notes in open market transactions if such repurchase is not otherwise prohibited by this Indenture;
(3) permanently reduce Obligations ranking pari passu with the Notes other than Pari Passu Lien Obligations so long as the relevant Net Cash Proceeds are received with respect to an Asset Sale of property that does not constitute Collateral; provided that if the Company or redeem any Restricted Subsidiary shall so reduce any such pari passu Obligations, the Company will equally and ratably reduce or offer to reduce Obligations under the Notes in any manner set forth in clause (1)(y) above (based on the amounts so applied to such repayments or prepayments);
(4) permanently reduce Secured Indebtedness of the Company or any Subsidiary Guarantor or Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor, in each case owing to a Person other than the Company or any of its Restricted Subsidiaries;
(5) make (A) an investment in or acquisition of any one or more Replacement Assets, (B) capital expenditures in a Related Business owned by the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iiiC) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and of a nature or type that are used in or useful in to the Oil and Gas Business. The requirement business of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries existing on the date of such investment, capital expenditure or acquisition; provided that the assets (including Capital Stock) acquired with the Net Cash Proceeds of a Person other than an Affiliate disposition of Collateral are pledged as Collateral to the extent required under the Security Documents (except to the extent a Lien thereon is released by lenders under the Park Credit Agreements); or
(6) any combination of the foregoing; provided, that the Company will be deemed to have complied with the provisions described in clause (5) of this Section 4.09 if and to the extent that the Company or any of its Restricted Subsidiaries enter into a definitive agreement committing to make such investment, acquisition or capital expenditure or so invest within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract 365-day period, which acquisition, capital expenditure or investment shall be made within 180 days following after the date end of such agreement is entered into365-day period. Pending the final application of any such Net ProceedsCash Proceeds as described above, the Company (may temporarily reduce Indebtedness or any Restricted Subsidiary) may otherwise invest the such Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any The amount of such excess Net Cash Proceeds from Asset Sales that are required to be applied (or to be committed to be applied) during such 365-day period as set forth in the preceding sentence and not applied (or invested committed to be applied) as provided in Section 4.10(c) so required by the end of such period will constitute “Excess Proceeds.” When If, as of the first day of any calendar month, the aggregate amount of Excess Proceeds exceeds not previously subject to an Offer to Purchase pursuant to this Section 4.09 totals more than $20.0 100.0 million, within five days thereof, the Company will make must commence, not later than 20 Business Days thereafter, and consummate an offer (an “Asset Sale Offer”) Offer to all Purchase from the Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers an Offer to purchase, prepay Purchase or redeem with the proceeds of sales of assets to purchase, prepay or redeemassets, on a pro rata basis, the maximum an aggregate principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of equal to the Excess Proceeds. The offer Proceeds on such date, at a purchase price in any Asset Sale Offer will be equal to 100% of the principal amountamount of the Notes and such other pari passu Indebtedness plus, plus in each case, accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this IndenturePayment Date. If the aggregate principal amount of Notes and other pari passu Indebtedness with the Notes tendered in into such Asset Sale Offer to Purchase exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select then the Notes to and such other pari passu Indebtedness will be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with principal amount of the Notes and such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)other pari passu Indebtedness tendered. Upon completion of each Asset Sale OfferOffer to Purchase, the amount of any remaining Excess Proceeds subject to such Offer to Purchase will no longer be reset at zerodeemed to be Excess Proceeds and may be applied to any other purpose not prohibited under this Indenture. The Company Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Offer to Purchase in connection with an Asset Sale OfferSale. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the provisions of this Section 4.104.09, the Company Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its their obligations under Section 3.09 or this Section 4.10 4.09 by virtue of such compliance.
Appears in 3 contracts
Samples: Indenture (Park Hotels & Resorts Inc.), Indenture (Park Hotels & Resorts Inc.), Indenture (Park Hotels & Resorts Inc.)
Asset Sales. (a) The Parent Guarantor and the Company will not, and the Parent Guarantor will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale (other than an Event of Loss), unless:
(ai) the Company (Company, the Parent Guarantor or a the Restricted Subsidiary, as the case may be) , receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(bii) at least 75% of the aggregate consideration received in the Asset Sale by the Company Company, the Parent Guarantor or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalentscash. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the CompanyParent Guarantor’s most recent consolidated balance sheet, of the Company Parent Guarantor or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeFacilities Liabilities) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company Parent Guarantor or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations Obligations received by the Company Parent Guarantor or any such Restricted Subsidiary from such transferee that are, within 180 30 days of the Asset Salereceipt thereof, converted by the Company Parent Guarantor or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;; and
(4C) any Capital Stock stock or assets of the kind referred to in clause (2Section 5(b)(ii) or (4) of Section 4.10(civ); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 3 contracts
Samples: Amendment and Restatement Agreement (STUDIO CITY INTERNATIONAL HOLDINGS LTD), Amendment and Restatement Agreement (STUDIO CITY INTERNATIONAL HOLDINGS LTD), Amendment and Restatement Agreement (Melco Crown Entertainment LTD)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as determined by the Company’s Board of Directors and evidenced by a resolution of the date Board of Directors set forth in an Officers’ Certificate delivered to the definitive agreement with respect Trustee as to such Asset SaleSales having a Fair Market Value of $50.0 million or greater) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents, publicly traded equity securities of a Person with a market capitalization (not held by Affiliates of such Person) of at least $500 million or a controlling interest in, or long-term assets used or useful in, a business engaged in a Permitted Business. For purposes of this provision, each of the following will also be deemed to be cash:
(1A) any liabilities, as shown on the Company’s its most recent consolidated balance sheet, of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that areare promptly, within 180 days of the Asset Salesubject to ordinary settlement periods, converted or monetized by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;conversion or monetization; and
(4C) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c4.12(b); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary) , as the case may be, may apply such those Net Proceeds Proceeds, at its option option, to any combination one or more of the following:
(1) to repay, repurchase or redeem any repay Indebtedness and other Obligations of the Company or a and its Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the CompanySubsidiaries;
(2) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one any Person or more other Persons primarily engaged in the Oil and Gas division conducting a Permitted Business, if, after giving effect to in the case of any such acquisition of Capital StockStock and after giving effect thereto, such Person becomes will be a Restricted Subsidiary of the CompanyCompany (or enter into a binding commitment for any such acquisition); provided that such binding commitment shall be treated as a permitted application of Net Proceeds from the date of such commitment until and only until the earlier of (x) the date on which such acquisition is consummated and (y) the 180th day following the expiration of the aforementioned 360-day period. If the acquisition or expenditure contemplated by such binding commitment is not consummated on or before such 180th day and the Company or such Restricted Subsidiary shall not have applied such Net Proceeds pursuant to clause (1), (3) or (4) of this Section 4.12(b) on or before such 180th day, such commitment shall be deemed not to have been a permitted application of Net Proceeds;
(3) to make a capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Businessexpenditure; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; provided, however, that to the Oil and Gas Business. The requirement extent that the Asset Sale consists, directly or indirectly, of clause Domestic Assets, in order to qualify under any of the foregoing clauses (21) or through (4) of this Section 4.10(c4.12(b), the Company must apply such proceeds to acquire additional Domestic Assets, acquire assets located in the United States or a Person described in Section 4.12(b)(2) shall be deemed to be satisfied if which will become a bona fide binding contract committing to Domestic Subsidiary at the time it becomes a Restricted Subsidiary pursuant thereto, make the investment, acquisition domestic capital expenditures or expenditure referred to therein repay Indebtedness that is entered into by an obligation of the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Subsidiary Guarantor.
(c) Pending the final application of any Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the Net Proceeds in any manner that is not prohibited by this Supplemental Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c4.12(b) will constitute “Excess Proceeds.” When On the 361st day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds exceeds $20.0 25.0 million, within five days thereof, the Company will make an offer Asset Sale Offer to all Holders of the GO Zone Bonds and to all holders of other Pari Passu Indebtedness (collectively, an “Asset Sale Offer”) in respect of which an offer to all Holders of the Notes and all holders of other Indebtedness that purchase is pari passu with the Notes containing provisions similar also required to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes GO Zone Bonds and such other pari passu Pari Passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interest, if any, interest to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Supplemental Indenture. If the aggregate principal amount of Notes GO Zone Bonds and other Pari Passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes GO Zone Bonds and such other Pari Passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. .
(d) To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 the Change of Control or Asset Sale provisions of this Section 4.10Supplemental Indenture, the Company will shall comply with the applicable securities laws and regulations and the Company will not be deemed to have breached its obligations under Section 3.09 the Change of Control or Asset Sale provisions of this Section 4.10 Supplemental Indenture by virtue of such complianceconflict.
(e) Notwithstanding the provisions described in Sections 4.12(a), (b), (c) and (d) (other than the proviso to Section 4.12(b)), the Company and its Restricted Subsidiaries may consummate an Asset Sale without complying with such provisions if (i) at least 80% of the consideration for such Asset Sale is in the form of assets used or useful in a Permitted Business and (ii) such Asset Sale is for at least Fair Market Value.
Appears in 3 contracts
Samples: Fourth Supplemental Indenture (Westlake Chemical Corp), Third Supplemental Indenture (Westlake Chemical Corp), Second Supplemental Indenture (Westlake Chemical Corp)
Asset Sales. (a) The Parent Guarantor and the Company will not, and the Parent Guarantor will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale (other than an Event of Loss), unless:
(a1) the Company (Company, the Parent Guarantor or a the Restricted Subsidiary, as the case may be) , receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received in the Asset Sale by the Company Company, the Parent Guarantor or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalentscash. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the CompanyParent Guarantor’s most recent consolidated balance sheet, of the Company Parent Guarantor or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company Parent Guarantor or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations Obligations received by the Company Parent Guarantor or any such Restricted Subsidiary from such transferee that are, within 180 30 days of the Asset Salereceipt thereof, converted by the Company Parent Guarantor or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;; and
(4C) any Capital Stock stock or assets of the kind referred to in clause (2Section 4.10(b)(2) or (4) of Section 4.10(c4.10(b)(4); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset SaleSale (including an Event of Loss), the Company (Company, the Parent Guarantor or any the applicable Restricted Subsidiary) , as the case may be may apply such Net Proceeds at its option to any combination of the followingProceeds:
(1) to repayrepay (a) Indebtedness Incurred under Section 4.09(b)(1) and Indebtedness that is secured under clause (25) of the definition of “Permitted Liens”, repurchase or redeem any (b) other Indebtedness of the Company or a Restricted Subsidiary Guarantor secured by property and assets that do not constitute Collateral that is the subject of such Asset Sale, and, in each case, if the CompanyIndebtedness repaid is revolving credit Indebtedness, other than to correspondingly reduce commitments with respect thereto, (ic) Indebtedness of an Issuer or a Guarantor Restricted Subsidiary that is subordinated to not a Subsidiary Guarantor or (d) the Notes or the Note Guarantees2021 Notes pursuant to the redemption provisions of this Indenture or the 2021 Notes Indenture, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companyas applicable;
(2) to acquire all or substantially all of the assetsassets of another Permitted Business, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas a Person undertaking another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Restricted Subsidiary of the CompanyParent Guarantor (provided that (a) such acquisition funded with any proceeds from an Event of Loss occurs within the date that is 545 days after receipt of the Net Proceeds from the relevant Event of Loss to the extent that a binding agreement to acquire such assets or Capital Stock is entered into on or prior to the date that is 360 days after receipt of the Net Proceeds from the relevant Event of Loss, and (b) if such acquisition is not consummated within the period set forth in clause (a), the Net Proceeds not so applied will be deemed to be Excess Proceeds);
(3) to make a capital expenditures in respect expenditure (provided that any such capital expenditure funded with any proceeds from an Event of Loss occurs within the date that is 545 days after receipt of the Company’s Net Proceeds from the relevant Event of Loss to the extent that a binding agreement to make such capital expenditure is entered into on or any Restricted Subsidiaries’ Oil and Gas Businessprior to the date that is 360 days after receipt of the Net Proceeds from the relevant Event of Loss); or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business (provided that (a) such acquisition funded from an Event of Loss occurs within the Oil date that is 545 days after receipt of the Net Proceeds from the relevant Event of Loss to the extent that a binding agreement to acquire such assets is entered into on or prior to the date that is 360 days after receipt of the Net Proceeds from the relevant Event of Loss, and Gas Business. The requirement of (b) if such acquisition is not consummated within the period set forth in clause (a), the Net Proceeds not so applied will be deemed to be Excess Proceeds); or enter into a binding commitment regarding clauses (2), (3) or (4) above (in addition to the binding commitments expressly referenced in those clauses), provided that such binding commitment shall be treated as a permitted application of Section 4.10(cNet Proceeds from the date of such commitment until the earlier of (x) the date on which such acquisition or expenditure is consummated and (y) the 180th day following the expiration of the aforementioned 360-day period. To the extent such acquisition or expenditure is not consummated on or before such 180th day and the Company, the Parent Guarantor or such Restricted Subsidiary shall not have applied such Net Proceeds pursuant to clauses (2), (3) or (4) above on or before such 180th day, such commitment shall be deemed not to be satisfied if have been a bona fide binding contract committing to make the investmentpermitted application of Net Proceeds, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. will constitute Excess Proceeds.
(c) Pending the final application of any Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this Section 4.10(c) 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 US$5.0 million, within five ten (10) days thereof, the Company will shall make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes and secured by the Collateral containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interestinterest and Additional Amounts, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee Company will select the purchase all tendered Notes to be purchased and such other pari passu Indebtedness on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)under Section 3.02. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and or regulations are applicable in connection with each the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliancethereof.
Appears in 3 contracts
Samples: Indenture (STUDIO CITY INTERNATIONAL HOLDINGS LTD), Indenture (STUDIO CITY INTERNATIONAL HOLDINGS LTD), Indenture (Melco Crown Entertainment LTD)
Asset Sales. The Company (a) Any New Parent will not, and the Company will not and neither of them will permit any of its their Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) such New Parent, the Company (or a the Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received in the Asset Sale by such New Parent, the Company or a such Restricted Subsidiary and all other Asset Sales since Subsidiary, as the date of this Indenture case may be, is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on such New Parent’s or the Company’s most recent combined or consolidated balance sheet, of such New Parent, the Company or any of their Restricted Subsidiary Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets or Equity Interests pursuant to a customary novation or indemnity agreement that releases such New Parent, the Company or such Restricted Subsidiary Subsidiary, as the case may be, from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by such New Parent, the Company or any of their Restricted Subsidiary Subsidiaries from such transferee that areare contemporaneously, within 180 days of the Asset Salesubject to ordinary settlement periods, converted by such New Parent, the Company or such Restricted Subsidiary Subsidiary, as the case may be, into cash, to the extent of the cash received in that conversion;; and
(4C) any Capital Stock stock or assets of the kind referred to in clause clauses (2) or (4) of Section 4.10(c); and
(54.11(b) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in valuehereof.
(cb) Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, any such New Parent, the Company (or any the applicable Restricted Subsidiary) , as the case may be, shall apply such Net Proceeds at its option to any combination of the followingProceeds:
(1) to repayrepay Indebtedness and other Obligations under any Credit Facility, repurchase or redeem any and if the Indebtedness of repaid is revolving credit Indebtedness, such New Parent, the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer applicable borrower or a Guarantor that is subordinated borrowers will be required to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companycorrespondingly reduce commitments with respect thereto;
(2) to acquire (including by merger or consolidation) all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Restricted Subsidiary of any New Parent or of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas BusinessCapital Expenditures; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, such New Parent, the Company (Issuers or any the applicable Restricted Subsidiary) , as the case may be, may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c4.11(b) hereof will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 5.0 million, the Issuers will, within five days thereof, the Company will make an offer Offer to Purchase Notes pursuant to this Section 4.10 and Section 3.09 (an “Asset Sale Offer”) to all Holders of the Notes pursuant to Section 3.09 hereof and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interestinterest and Additional Interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes and the Issuers or such other agent will select for such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(d) Any New Parent will not, the Issuers will not and none of them will permit their Restricted Subsidiaries to, enter into or suffer to exist any agreement (other than any agreement governing Credit Facilities for Indebtedness permitted to be incurred pursuant to clause (1) of Section 4.14(b)) that would place any restriction of any kind (other than pursuant to law or regulation) on the ability of the Issuers to make an Asset Sale Offer.
(e) The Company Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.104.11, the Company Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its their obligations under Section 3.09 or this Section 4.10 4.11 by virtue of such compliance.
Appears in 3 contracts
Samples: Indenture (Forbes Energy Services Ltd.), Indenture (Forbes Energy Services Ltd.), Indenture (Forbes Energy Services LLC)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is determined by the Company's Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and
(b3) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalentscash. For purposes of this provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s 's or such Restricted Subsidiary's most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, are converted within 180 30 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5c) any Designated Non-cash Consideration received payment of Senior Debt secured by the Company or such Restricted Subsidiary assets sold in such the Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Sale. Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such those Net Proceeds at its option to any combination of the followingoption:
(1) to repayrepay Senior Debt and, repurchase or redeem any Indebtedness of if the Company or a Restricted Subsidiary of the CompanySenior Debt repaid is revolving credit Indebtedness, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companycorrespondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assetsassets of, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary majority of the CompanyVoting Stock of, another Permitted Business;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; orexpenditures;
(4) to acquire other long-term assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement ; or
(5) for any combination of clause clauses (21) or through (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered intoabove. Pending the final application of any Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) the preceding paragraph will constitute “"Excess Proceeds.” " When the aggregate amount of Excess Proceeds exceeds $20.0 million, 5.0 million within five business days thereof, the Company will make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interestinterest and Additional Interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with principal amount of Notes and such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or 4.10 of this Section 4.10Indenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or those provisions of this Section 4.10 Indenture by virtue of such complianceconflict.
Appears in 2 contracts
Samples: Indenture (Icon Health & Fitness Inc), Indenture (Icon Health & Fitness Inc)
Asset Sales. (a) The Company will Issuers shall not, and will shall not permit any Restricted Subsidiary of its Restricted Subsidiaries the Partnership to, consummate an Asset Sale unless:
(ai) the Company such Issuer (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) such fair market value is determined by (a) an executive officer of the Partnership if the value is less than $10.0 million, as evidenced by an Officers' 58 Certificate delivered to the Trustee or (b) the Board of Directors of the General Partner if the value is $10.0 million or more, as evidenced by a resolution of such Board of Directors of the General Partner; and
(biii) at least 75% of the aggregate consideration Net Proceeds received in the Asset Sale by the Company such Issuer or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provisionclause (iii), each of the following will shall be deemed to be cash:
(1A) any liabilities, liabilities (as shown on the Company’s such Issuer's or such Restricted Subsidiary's most recent consolidated balance sheet), of the Company Issuers or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company such Issuer or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company such Issuer or any such Restricted Subsidiary from such transferee that are, are within 180 90 days of after the Asset Sale, Sales (subject to ordinary settlement periods) converted by the Company such Issuer or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company Partnership or a Restricted Subsidiary may apply (or any Restricted Subsidiaryenter into a definitive agreement for such application, provided that such capital expenditure or purchase is closed within 90 days after the end of such 360-day period) may apply such Net Proceeds at its option option: (i) to any combination repay Senior Debt of the following:
Partnership and/or its Restricted Subsidiaries (1) or to repay, make an offer to repurchase or redeem any Indebtedness such Senior Debt, provided that such repurchase or redemption closes within 45 days after the end of the Company or such 360-day period) with a Restricted Subsidiary of the Company, other than permanent reduction in availability for any revolving credit Indebtedness;
(i) Indebtedness of an Issuer or to make a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companycapital expenditure in a Permitted Business;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4ii) to acquire other long-term tangible assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause ; or
(2iii) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company invest in any other Permitted Business Investment or any of its Restricted Subsidiaries with a Person other Permitted Investments other than an Affiliate of the Company within the time period specified Investments in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered intoCash Equivalents, Interest Swaps or Currency Agreements. Pending the final application of any such Net Proceeds, the Company (Partnership or any a Restricted Subsidiary) Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c4.07(b) above will constitute “"Excess Proceeds.” ". When the aggregate amount of Excess Proceeds exceeds $20.0 10 million, within five days thereof, the Company Issuers will make an a pro rata offer (an “"Asset Sale Offer”") to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interestinterest (including any Liquidated Damages in the case of the Notes), if any, and premium, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary Partnership may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture, including, without limitation, the repurchase or redemption of Indebtedness of the Issuers or any Subsidiary Guarantor that is subordinated to the Notes or, in the case of any Subsidiary Guarantor, the Guarantee of such Subsidiary Guarantor. If the aggregate principal amount of Notes tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated for repurchases of Notes pursuant to the purchase of Asset Sale Offer for Notes, the Trustee will shall select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company will comply with .
(d) Notwithstanding the definition of the term "Asset Sale" in Section 1.01 hereof, the following transactions shall not constitute an Asset Sale for purposes of this Indenture:
(i) any transaction whereby assets or properties (including (a) ownership interests in any Subsidiary or Joint Venture and (b) in the case of an exchange or contribution for tangible assets, up to 25% in the form of cash, Cash Equivalents, accounts receivable or other current assets), owned by the Partnership or a Restricted Subsidiary of the Partnership are exchanged or contributed for the Equity Interests of a Joint Venture or Unrestricted Subsidiary in a transaction that satisfies the requirements of Rule 14e-1 under a Permitted Business Investment or for other assets (not more than 25% of which consists of cash, Cash Equivalents, accounts receivables or other current assets) or properties (including interests in any Subsidiary or Joint Venture) so long as (i) the Exchange Act and any fair market value of the assets or properties (if other securities laws and regulations thereunder than a Permitted Business Investment) received are substantially equivalent to the extent those laws fair market value of the assets or properties given up, and regulations are applicable (ii) any cash received in connection such exchange or contribution by the Partnership or any Restricted Subsidiary of the Partnership is applied in accordance with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the foregoing provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.104.07;
(ii) any sale, transfer or other disposition of cash or Cash Equivalents;
(iii) any sale, transfer or other disposition of Restricted Investments; and
(iv) any sale, transfer or other disposition of interests in oil and gas leaseholds (including, without limitation, by abandonment, farm-ins, farm-outs, leases, swaps and subleases), hydrocarbons and other mineral products in the Company will comply with ordinary course of business of the applicable securities laws oil and regulations and will not be deemed to have breached its obligations under Section 3.09 gas operations conducted by the Partnership or this Section 4.10 any Restricted Subsidiary of the Partnership, which sale, transfer or other disposition is made by virtue of the Partnership or any such complianceRestricted Subsidiary.
Appears in 2 contracts
Samples: Indenture (El Paso Energy Partners Lp), Indenture (First Reserve Gas LLC)
Asset Sales. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash cash, Cash Equivalents or Cash EquivalentsReplacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown recorded on the Company’s most recent consolidated balance sheet, sheet of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) liabilities), that are assumed by the transferee of any such assets pursuant to and as a novation or indemnity agreement that releases result of which the Company and its Restricted Subsidiaries are no longer obligated with respect to such liabilities or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary are indemnified against further liabilityliabilities;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents within 180 days following the closing of the Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion;
(4c) any Capital Stock or assets of the kind referred to in clause (2Section 4.10(b)(3) or Section 4.10(b)(5) hereof;
(4d) Indebtedness of Section 4.10(c)any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of such Indebtedness in connection with such Asset Sale;
(e) consideration consisting of Indebtedness of the Company or any Guarantor received from Persons who are not the Company or any Restricted Subsidiary; and
(5f) any Designated Non-cash Consideration consideration other than cash, Cash Equivalents or Replacement Assets received by the Company or such any Restricted Subsidiary in such Asset Sale having an aggregate with a Fair Market Value, taken together with all other Designated Non-cash Consideration consideration received pursuant to this clause (e)f) that is at the time outstanding, not to exceed an amount equal to 5.0the greater of (i) $50.0 million and (ii) 1.0% of the Company’s Adjusted Consolidated Net Total Tangible Assets (determined at the time of the receipt of such Designated Non-cash Consideration)consideration, with the Fair Market Value of each item of Designated Non-cash Consideration such consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option to any combination of the followingProceeds:
(1) to repay, repurchase permanently reduce or redeem any Indebtedness of the Company or repay Obligations under a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated Credit Facility to the Notes or the Note Guarantees, (iiextent such Obligations were incurred under Section 4.09(b)(1) Capital Stock or (iii) Indebtedness owed and to an Affiliate of the Companycorrespondingly reduce any outstanding commitments with respect thereto;
(2) to purchase the Notes pursuant to an offer to all Holders of Notes at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest to (but not including) the date of purchase (a “Notes Offer”);
(3) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Restricted Subsidiary of the CompanySubsidiary;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to make a capital expenditure;
(5) to acquire other assets that are (other than Capital Stock) not classified as current assets under GAAP and IFRS that are used or useful in the Oil and Gas a Permitted Business. The requirement ;
(6) to repurchase, prepay, redeem or repay Indebtedness (a) of clause (2) a Restricted Subsidiary which is not a Guarantor, or Indebtedness of any Guarantor that is secured by a Lien on such assets or (4b) which is pari passu in right of payment with the Notes or any Note Guarantee; provided, however, that if the Company or a Restricted Subsidiary shall so repurchase, prepay, redeem, or repay Indebtedness pursuant to Section 4.10(c4.10(b)(6)(b), the Company will make a Notes Offer for an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such pari passu Indebtedness; provided, further, that the Company shall be deemed to be have satisfied if a bona fide binding contract committing its obligation to make a Notes Offer if it otherwise equally and ratably reduces obligations under the investmentNotes through (x) open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or (y) as provided under Section 3.07 hereof; or
(7) enter into a binding commitment to apply the Net Proceeds pursuant to Section 4.10(b)(3), (b)(4) or (b)(5) above; provided that such binding commitment (or any subsequent commitments replacing the initial commitment that may be cancelled or terminated) shall be treated as a permitted application of the Net Proceeds from the date of such commitment until the earlier of (x) the date on which such acquisition or expenditure referred to therein is entered into by consummated and (y) the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate 180th day following the expiration of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. aforementioned 360 day period.
(c) Pending the final application of any Net Proceeds, the Company (or any the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c4.10(b) hereof (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes as described in Section 4.10(b)(2) or Section 4.10(b)(6) hereof shall be deemed to have been invested whether or not such Notes Offer is accepted) will constitute “Excess Proceeds.” ”. When the aggregate amount of Excess Proceeds exceeds $20.0 40.0 million, within five days ten Business Days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and may make an offer to all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 or any Note Guarantees with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase, prepay or redeem, on a pro rata basis, redeem the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interestinterest and Additional Amounts, if any, to but not including the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into (or to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, or if the aggregate amount of Notes tendered pursuant to a Notes Offer exceeds the amount of the Net Proceeds allocated to the purchase of Notesso applied, the Trustee will select the Notes and such other pari passu Indebtedness, if applicable, to be purchased on a pro rata basis (except that any Notes represented by a Note or in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by lawmanner described in Section 3.02 hereof), based on the amounts tendered (with such adjustments as may or required to be deemed appropriate by the Company so that only Notes in denominations of $2,000, prepaid or an integral multiple of $1,000 in excess thereof, will be purchased)redeemed. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the relevant 360 days (or such longer period provided above) or with respect to Excess Proceeds of $40.0 million or less.
(e) The Company will comply with the requirements of Rule 14e-1 under the U.S. Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Change of Control Offer, an Asset Sale Offer or a Notes Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 hereof or the Change of Control, Asset Sale or Notes Offer provisions of this Section 4.10Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or the Change of Control, Asset Sale or Notes Offer provisions of this Section 4.10 Indenture by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD)
Asset Sales. The Company Issuer will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a) the Company Issuer (or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date within 15 days of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b) at least 75% of the aggregate consideration received in the Asset Sale by the Company Issuer or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture Prior Issue Date is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the CompanyIssuer’s most recent consolidated balance sheet, of the Company Issuer or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a novation or indemnity agreement that releases the Company Issuer or such Restricted Subsidiary from or indemnifies against further liability (or in lieu of such absence of liability, the Company acquiring Person or its parent company agrees to indemnify and hold the Issuer or such Restricted Subsidiary harmless from and against further liabilityany loss, liability or cost in respect of such assumed liabilities);
(2) with respect to any Asset Sale of oil and natural gas properties by the Company Issuer or any of its Restricted Subsidiary Subsidiaries where the Company Issuer or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company Issuer or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which that the transferee (or an Affiliate thereof) agrees to pay;
(3) any securities, notes Notes or other obligations received by the Company Issuer or any Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, converted by the Company Issuer or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c)Additional Assets; and
(5) any Designated Non-cash Consideration received by the Company Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e5), not to exceed an amount equal to 5.0% of the CompanyIssuer’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company Issuer (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the following:
(1) to repay, redeem or repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the CompanySenior Debt;
(2) to invest in or acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;Additional Assets; or
(3) to make capital expenditures in respect of the CompanyIssuer’s or any Restricted Subsidiaries’ Oil and Gas Business; or.
(4d) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (43) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company Issuer (or any of its Restricted Subsidiaries Subsidiary) with a Person other than an Affiliate of the Company a Restricted Subsidiary within the time period specified in the preceding paragraph Section 4.10(c) and such Net Proceeds are subsequently applied in accordance with such contract within 180 days six months following the date such agreement is entered into. .
(e) Pending the final application of any Net Proceeds, the Company Issuer (or any Restricted Subsidiary) may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(f) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 50.0 million, within five days thereof, the Company Issuer will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basisbasis (based on principal amounts of Notes and pari passu Indebtedness (or, in the case of pari passu Indebtedness issued with significant original issue discount, based on the accreted value thereof) tendered), the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment dateInterest Payment Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company Issuer or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by lawappropriate), based on the principal amounts tendered (with such adjustments as may be deemed appropriate by the Company Issuer so that only Notes in denominations of $2,000, or an 2,000 and any integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company Issuer may satisfy the foregoing obligation with respect to any Excess Proceeds by making an Asset Sale Offer prior to the expiration of the relevant 360 day period or with respect to Excess Proceeds of $50.0 million or less.
(g) The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Range Resources Corp), Indenture (Range Resources Corp)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received by the Company or such Restricted Subsidiary in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture September 21, 2010 is in the form of cash cash, Cash Equivalents or Cash EquivalentsReplacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheetsheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company Company, or any such Restricted Subsidiary Subsidiary, from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cash, Cash Equivalents or Replacement Assets within 90 days after such Asset Sale, to the extent of the cash cash, Cash Equivalents or Replacement Assets received in that conversion;
(4) . Notwithstanding the foregoing, the 75% limitation referred to above shall be deemed satisfied with respect to any Capital Stock Asset Sale in which the cash, Cash Equivalents or assets Replacement Assets portion of the kind referred consideration received therefrom, determined in accordance with the foregoing provision on an after-tax basis, is equal to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Nongreater than what the after-cash Consideration received by the Company or such Restricted Subsidiary in tax proceeds would have been had such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), complied with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) aforementioned 75% limitation. Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any a Restricted Subsidiary) Subsidiary may apply an amount equal to such Net Proceeds at its option to any combination of the followingProceeds:
(1) to purchase Replacement Assets; or
(2) to prepay, repay, repurchase defease, redeem, purchase or redeem otherwise retire Indebtedness and other Obligations under a Credit Facility or Indebtedness secured by property that is subject to such Asset Sale or any secured Indebtedness and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto. Notwithstanding the foregoing, if within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or a Restricted Subsidiary enters into a binding written agreement committing the Company or such Restricted Subsidiary, subject to customary conditions, to an application of funds of the Companykind described in clause (1) above, other than (i) Indebtedness of an Issuer the Company or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed not to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any in violation of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and so long as such application of funds is consummated within 545 days of the receipt of such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered intoProceeds. Pending the final application of any Net ProceedsProceeds of an Asset Sale, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may invest otherwise use the Net Proceeds in any manner that is not prohibited by this the Indenture. Any An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in the third paragraph of this Section 4.10(c) 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five 20 days thereof, the Company will shall apply the entire aggregate amount of unutilized Excess Proceeds (not only the amount in excess of $20.0 million) to make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar requiring the Company to those set forth in this Section 4.10 with respect make an offer to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets in accordance with Section 3.07 of the Base Indenture to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and purchase or redeem such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid purchased or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amountamount of the Notes and such other pari passu Indebtedness that may be purchased or redeemed with Excess Proceeds, plus accrued and unpaid interestinterest to, if anybut not including, to the date of purchase, prepayment or redemption, subject to the rights of Holders consummation of the Notes on the relevant record date to receive interest due on the relevant interest payment datepurchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any and its Restricted Subsidiary Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this the Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in response to such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will shall select the Notes and the Company will select such other pari passu Indebtedness to be purchased or redeemed on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, law or an integral multiple of $1,000 in excess thereof, will be purchased)applicable stock exchange or depositary requirements. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 3.07 of the Base Indenture or this Section 4.10, or compliance with Section 3.07 of the Base Indenture or this Section 4.10 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 3.07 of the Base Indenture or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: First Supplemental Indenture (Metropcs Communications Inc), Second Supplemental Indenture (Metropcs Communications Inc)
Asset Sales. The Company will Partnership shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a) the Company Partnership (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(b) such fair market value is determined by (a) an executive officer of the General Partner if the value is less than $50.0 million, as evidenced by an Officers’ Certificate delivered to the Trustee or (b) the Board of Directors of the General Partner if the value is $50.0 million or more, as evidenced by a resolution of such Board of Directors of the General Partner; and
(bc) at least 75% of the aggregate consideration received by the Partnership and its Restricted Subsidiaries in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales of the Partnership and its Restricted Subsidiaries since the date of this Indenture Issue Date is in the form of cash or Cash Equivalents. For purposes of this provisionclause (c), each of the following will shall be deemed to be cash:
(1i) any liabilities, liabilities (as shown on the CompanyPartnership’s most recent consolidated balance sheet, ) of the Company Partnership or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a novation or indemnity agreement that releases the Company Partnership or such Restricted Subsidiary from from, or indemnifies the Company or such Restricted Subsidiary against it against, further liability;; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3ii) any securities, notes or other obligations Obligations received by the Company Partnership or any such Restricted Subsidiary from such transferee that are, are within 180 120 days of after the Asset Sale, Sale (subject to ordinary settlement periods) converted by the Company such Issuer or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) . Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company Partnership or a Restricted Subsidiary may apply (or any Restricted Subsidiaryenter into a definitive agreement for such application within such 360-day period, provided that such application occurs within 90 days after the end of such 360-day period) may apply such Net Proceeds at its option to any combination of the followingoption:
(1a) to repay, repay senior Indebtedness of the Partnership and/or its Restricted Subsidiaries (or to make an offer to repurchase or redeem any Indebtedness such Indebtedness, provided that such repurchase or redemption closes within 45 days after the end of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companysuch 360-day period);
(2b) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged make a capital expenditure in the Oil and Gas a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4c) to acquire other long-term tangible assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause ; or
(2d) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or invest in any of its Restricted Subsidiaries with a Person other Permitted Investments other than an Affiliate of the Company within the time period specified Investments in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered intoCash Equivalents, Interest Swaps or Currency Agreements. Pending the final application of any such Net Proceeds, the Company (Partnership or any a Restricted Subsidiary) Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this the Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c5.07(b) above will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 50.0 million, within five ten days thereof, thereof the Company Partnership will make an a pro rata offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 the Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets to purchase, prepay purchase or redeem, on a pro rata basis, redeem the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid purchased or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemptionPurchase Date, subject to the rights of Holders of the Notes any Holder in whose name a Note is registered on the relevant a record date occurring prior to the Purchase Date to receive interest due on the relevant interest payment datean Interest Payment Date that is on or prior to such Purchase Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Partnership and its Restricted Subsidiary Subsidiaries may use those such Excess Proceeds for any purpose not otherwise prohibited by this the Indenture, including, without limitation, the repurchase or redemption of Indebtedness of the Issuers or any Subsidiary Guarantor that is subordinated to the Notes or, in the case of a Subsidiary Guarantor, the Guarantee of such Subsidiary Guarantor. If the aggregate principal amount of Notes tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated for repurchases of Notes pursuant to the purchase of Asset Sale Offer for Notes, the Trustee will shall select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note or, in the case of notes in global form form, the Trustee will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a select Notes for redemption based on DTC’s method that most nearly approximates a pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchasedselection). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company will Partnership shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 4.09 or this Section 4.105.07, the Company will Partnership shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 4.09 or this Section 4.10 5.07 by virtue of such compliance.
Appears in 2 contracts
Samples: Fifteenth Supplemental Indenture (Markwest Energy Partners L P), Thirteenth Supplemental Indenture (Markwest Energy Partners L P)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
(ai) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed ofof (except in respect of Designated Assets sold pursuant to a Designated Asset Contract);
(ii) the fair market value or Designated Asset Value, as applicable, in the case of any Asset Sales or series of related Asset Sales having a fair market value of $35.0 million or more, is determined by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers’ Certificate delivered to the Trustee; and
(biii) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provisionSection 4.10(a)(iii) only, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents within 90 days after the applicable Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion;
(43) notes or other obligations or Indebtedness actually received by the Company or any Capital Stock such Restricted Subsidiary as consideration for the sale or assets other disposition of a Designated Asset pursuant to a contract with a governmental or quasi-governmental agency, but only to the extent that such notes or other obligations or Indebtedness were explicitly required to be included, or permitted to be included solely at the option of the kind referred purchaser, in such consideration pursuant to in clause (2) or such contract;
(4) 100% of Section 4.10(c)Indebtedness actually received by the Company or any Restricted Subsidiary as consideration for the sale or other disposition of an Unoccupied Facility; and
(5) any Designated Non-cash Cash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale, in an aggregate amount in any fiscal year of the Company (measured on the date such Designated Non-Cash Consideration was received without giving effect to subsequent changes in value), when taken together with all other Designated Non-Cash Consideration received as consideration pursuant to this clause (5) during such fiscal year (but, to the extent that any such Designated Non-Cash Consideration is sold or otherwise liquidated for cash, minus the lesser of (x) the amount of the cash received (less the cost of disposition, if any) and (y) the initial amount of such Designated Non-Cash Consideration), not to exceed $25 million.
(b) Notwithstanding subsection (a) of this Section 4.10, the Company and its Restricted Subsidiaries may engage in Asset Swaps; provided that:
(i) immediately after giving effect to such Asset Swap, the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof; and
(ii) the Board of Directors of the Company determines that the fair market value of the assets received by the Company or the Restricted Subsidiary in the Asset Swap is not less than the fair market value of the assets disposed of by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% Swap and such determination is evidenced by a resolution of the Company’s Adjusted Consolidated Net Tangible Assets (determined at Board of Directors set forth in an Officers’ Certificate delivered to the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in valueTrustee.
(c) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the applicable Restricted Subsidiary may apply those Net Proceeds, at its option:
(or any i) to repay permanently Indebtedness under the Credit Agreement (and with respect to Net Proceeds of a Restricted Subsidiary that is not a Guarantor, Indebtedness of such Restricted Subsidiary) may apply such Net Proceeds at its option and, if the Indebtedness permanently repaid is revolving credit Indebtedness, to any combination of the following:correspondingly reduce commitments with respect thereto;
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock to acquire, or (iii) Indebtedness owed enter into a definitive agreement to an Affiliate of the Company;
(2) to acquire acquire, all or substantially all of the assetsassets of, a Permitted Business or any Capital Stock, a majority of one or more other Persons primarily the Voting Stock of a Person engaged in the Oil and Gas a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, provided that such Person becomes a Restricted Subsidiary and provided, further, however, in the case of the Companya definitive agreement, that such acquisition closes within 120 days of such 360 day period;
(3iii) to make a capital expenditures expenditure in respect or that is used or useful in a Permitted Business (provided that the completion of (a) construction of new facilities, (b) expansions to existing facilities and (c) repair or construction of damaged or destroyed facilities, in each case, which commences within such 360 days may extend for an additional 360 day period if the Company’s Net Proceeds to be used for such construction, expansion or any Restricted Subsidiaries’ Oil and Gas Businessrepair are committed specifically for such activity within such 360 days); or
(4iv) to acquire other long-term assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in clause (c) of this Section 4.10(c4.10, or that the Company determines will not be applied or invested as provided in clause (c) will of this Section 4.10, shall constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 25.0 million, within five days thereof, the Company will shall make an offer (an “Asset Sale Offer”) to all Holders of Notes and, at the Notes and Company’s option, all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets assets, to purchase, prepay or redeem, purchase on a pro rata basis, basis the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interestinterest and Liquidated Damages, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes to and such other pari passu Indebtedness shall be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. .
(e) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the Asset Sale provisions of this Section 4.10Indenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such complianceconflict.
Appears in 2 contracts
Samples: Exhibit (Geo Group Inc), Execution Version (Geo Group Inc)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a) the Company (or a Restricted SubsidiarySubsidiary of the Company, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b) at least 75% of the aggregate consideration received by the Company and its Restricted Subsidiaries in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s or any of its Restricted Subsidiaries’ most recent consolidated balance sheet, of the Company or any Restricted such Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a novation or indemnity agreement that releases the Company or such Restricted Subsidiary from from, or indemnifies the Company or such Restricted Subsidiary against it against, further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any of its Restricted Subsidiary where Subsidiaries, any agreement by the Company transferee (or such Restricted Subsidiary retains an interest in such property, Affiliate thereof) to pay all or a portion of the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;thereto; and
(3) any securities, notes or other obligations received by the Company or any of its Restricted Subsidiary Subsidiaries from such transferee that are, within 180 120 days of after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) Subsidiary of the Company may apply such Net Proceeds at its option to any combination of the following:
(1) to repay, redeem or repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the CompanySenior Debt;
(2) to invest in or acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;Additional Assets; or
(3) to make capital expenditures in respect of the Company’s or any its Restricted Subsidiaries’ Oil and Gas Business; or.
(4d) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (43) of Section 4.10(cthe preceding paragraph (c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company (or any Restricted Subsidiary of its Restricted Subsidiaries the Company) with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days the later of six months following the date such agreement contract is entered into. into and 360 days after the receipt of any Net Proceeds from such Asset Sale.
(e) Pending the final application of any Net Proceeds, the Company (or any of its Restricted Subsidiary) Subsidiaries may invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(f) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) or (d) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days ten Business Days thereof, the Company will make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets assets, offering to purchase, prepay purchase or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Pari Passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid purchased or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interestinterest and Additional Interest, if any, to the date of purchase, prepayment purchase or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant an interest payment datedate that is on or prior to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary of the Company may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered accepted for payment in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor the Depository may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchasedrequire). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(g) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Legacy Reserves Inc.), Indenture (Legacy Reserves Lp)
Asset Sales. (a) The Parent Guarantor and the Company will not, and the Parent Guarantor will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale (other than an Event of Loss), unless:
(a1) the Company (Company, the Parent Guarantor or a the Restricted Subsidiary, as the case may be) , receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received in the Asset Sale by the Company Company, the Parent Guarantor or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalentscash. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the CompanyParent Guarantor’s most recent consolidated balance sheet, of the Company Parent Guarantor or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company Parent Guarantor or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations Obligations received by the Company Parent Guarantor or any such Restricted Subsidiary from such transferee that are, within 180 30 days of the Asset Salereceipt thereof, converted by the Company Parent Guarantor or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;; and
(4C) any Capital Stock stock or assets of the kind referred to in clause (2Section 4.10(b)(2) or (4) of Section 4.10(c4.10(b)(4); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset SaleSale (including an Event of Loss), the Company (Company, the Parent Guarantor or any the applicable Restricted Subsidiary) , as the case may be may apply such Net Proceeds at its option to any combination of the followingProceeds:
(1) to repay, repurchase or redeem any repay (a) Indebtedness Incurred under Section 4.09(b)(1) (b) other Indebtedness of the Company or a Restricted Subsidiary Guarantor secured by property and assets that do not constitute Collateral that is the subject of such Asset Sale, and, in each case, if the CompanyIndebtedness repaid is revolving credit Indebtedness, other than to correspondingly reduce commitments with respect thereto, (ic) Indebtedness of an Issuer or a Guarantor Restricted Subsidiary that is subordinated not a Subsidiary Guarantor or (d) the Notes pursuant to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate redemption provisions of the Companythis Indenture;
(2) to acquire all or substantially all of the assetsassets of another Permitted Business, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas a Person undertaking another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Restricted Subsidiary of the CompanyParent Guarantor (provided that (a) such acquisition funded with any proceeds from an Event of Loss occurs within the date that is 545 days after receipt of the Net Proceeds from the relevant Event of Loss to the extent that a binding agreement to acquire such assets or Capital Stock is entered into on or prior to the date that is 360 days after receipt of the Net Proceeds from the relevant Event of Loss, and (b) if such acquisition is not consummated within the period set forth in clause (a), the Net Proceeds not so applied will be deemed to be Excess Proceeds);
(3) to make a capital expenditures in respect expenditure (provided that any such capital expenditure funded with any proceeds from an Event of Loss occurs within the date that is 545 days after receipt of the Company’s Net Proceeds from the relevant Event of Loss to the extent that a binding agreement to make such capital expenditure is entered into on or any Restricted Subsidiaries’ Oil and Gas Businessprior to the date that is 360 days after receipt of the Net Proceeds from the relevant Event of Loss); or
(4) to acquire other assets that are not classified as current assets under U.S. GAAP and that are used or useful in a Permitted Business (provided that (a) such acquisition funded from an Event of Loss occurs within the Oil date that is 545 days after receipt of the Net Proceeds from the relevant Event of Loss to the extent that a binding agreement to acquire such assets is entered into on or prior to the date that is 360 days after receipt of the Net Proceeds from the relevant Event of Loss, and Gas Business. The requirement of (b) if such acquisition is not consummated within the period set forth in clause (a), the Net Proceeds not so applied will be deemed to be Excess Proceeds);or
(5) enter into a binding commitment regarding clauses (2), (3) or (4) above (in addition to the binding commitments expressly referenced in those clauses); provided that such binding commitment shall be treated as a permitted application of Section 4.10(cNet Proceeds from the date of such commitment until the earlier of (x) the date on which such acquisition or expenditure is consummated and (y) the 180th day following the expiration of the aforementioned 360-day period. To the extent such acquisition or expenditure is not consummated on or before such 180th day and the Company, the Parent Guarantor or such Restricted Subsidiary shall not have applied such Net Proceeds pursuant to clauses (2), (3) or (4)above on or before such 180th day, such commitment shall be deemed not to be satisfied if have been a bona fide binding contract committing to make the investmentpermitted application of Net Proceeds, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. will constitute Excess Proceeds.
(c) Pending the final application of any Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this Section 4.10(c) 4.10 will constitute “Asset Sale Excess Proceeds.” When the aggregate amount of Asset Sale Excess Proceeds exceeds $20.0 US$5.0 million, within five ten (10) days thereof, the Company will shall make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes and secured by the Collateral containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Asset Sale Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interestinterest and Additional Amounts, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Asset Sale Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Asset Sale Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Asset Sale Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee Company will select the purchase all tendered Notes to be purchased and such other pari passu Indebtedness on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)under Section 3.02. Upon completion of each Asset Sale Offer, the amount of Asset Sale Excess Proceeds will be reset at zero. .
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and or regulations are applicable in connection with each the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliancethereof.
Appears in 2 contracts
Samples: Indenture (STUDIO CITY INTERNATIONAL HOLDINGS LTD), Indenture (Melco Resorts & Entertainment LTD)
Asset Sales. The Company Borrower Agent and the Parent Guarantors will not, and will not permit any of its their Restricted Subsidiaries to, consummate an Asset Sale unless:
(a) the Company a Parent Guarantor or a Borrower (or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b) at least 75% (100% in the case of lease payments) of the aggregate consideration received in the Asset Sale by the Company such Parent Guarantor, such Borrower or a such Restricted Subsidiary and all other is received in the form of cash or Cash Equivalents; provided, however, that in the event of an Asset Sales since Sale of any property or assets of Pyxus Topco that are surplus from the date standpoint of this Indenture Pyxus Topco as a whole, in the good faith determination of the Board of Directors of Xxxxx Xxxxx (as evidenced by a resolution of such Board of Directors set forth in a certificate of a Responsible Officer delivered to the Administrative Agent), at least 60% of the consideration therefor received is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1i) any liabilities, as shown on the CompanyPyxus Topco’s most recent consolidated balance sheet, of the Company any Parent Guarantor, any Borrower or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes ABL Facility or any Note GuaranteeGuarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company such Parent Guarantor, such Borrower or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3ii) any securities, notes or other obligations received by the Company any Parent Guarantor, any Borrower or any such Restricted Subsidiary from such transferee that areare contemporaneously, within 180 days of the Asset Salesubject to ordinary settlement periods, converted by the Company such Parent Guarantor, such Borrower or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4iii) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 360 days after the receipt of any Net Proceeds net proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;
(2) Sale applied to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas another Permitted Business; provided, if, after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Subsidiary of a Borrower or a Parent Guarantor, it shall be or become a Restricted Subsidiary of the Company;a Borrower or a Parent Guarantor; and
(3iv) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) net proceeds from an Asset Sale applied to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business (which, for the Oil and Gas Business. The requirement avoidance of clause (2) or (4) of Section 4.10(c) doubt, shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) will constitute “Excess Proceedsinclude Cash Equivalents).” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: Abl Credit Agreement (Pyxus International, Inc.), Abl Credit Agreement (Pyxus International, Inc.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured fair market value, as determined in good faith by the Company's Board of the date of the definitive agreement with respect to such Asset Sale) Directors, of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash EquivalentsReplacement Assets, or a combination of both. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s 's most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeSubsidiary Guarantees) that are assumed by the transferee of any such assets pursuant to a novation or indemnity an agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion, within 180 days after receipt;
(4C) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c)Cash Equivalents; and
(5D) any Designated Non-cash Noncash Consideration received by the Company or such any of its Restricted Subsidiary Subsidiaries in such the Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in valueSale.
(cb) Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) Subsidiary may apply such Net Proceeds at its option to any combination of the followingProceeds:
(1) to repay, repurchase or redeem repay Indebtedness and other Obligations under any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor Credit Facility that is not expressly subordinated in right of payment to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companyother senior Indebtedness;
(2) to repay (or repurchase) any secured Indebtedness;
(3) to repay (or repurchase) any Indebtedness of such Restricted Subsidiary other than a Subsidiary Guarantor (except to the extent that such Indebtedness is pari passu with the Notes or the Subsidiary Guarantee given by such Subsidiary Guarantor);
(4) to repay (or repurchase) any Indebtedness with a final Stated Maturity that is prior to the final Stated Maturity of the Notes;
(5) to acquire a majority of the Voting Stock of another Person or all or substantially all of the assets, or any Capital Stock, assets of one or more other Persons primarily engaged in the Oil and Gas Businessor units, ifdivisions or other operating portions 44 thereof (including by means of a merger, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Companyconsolidation or other business combination permitted under this Indenture);
(36) to make one or more capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; orexpenditures;
(47) to acquire other noncurrent assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement business of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with Subsidiaries; or
(8) to acquire Capital Stock consisting of a minority interest in any Person other than an Affiliate that at such time is a Restricted Subsidiary of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered intoCompany. Pending the final application of any such Net Proceeds, the Company (or and any Restricted Subsidiary) Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c4.10(b) will hereof shall constitute “"Excess Proceeds.” " When the aggregate amount of Excess Proceeds exceeds $20.0 100 million, within five days thereof, the Company will shall, within 30 days, make an offer (an “Asset Sale Offer”) Offer to all Holders of Notes; and, at the Notes and Company's option, to all holders of other Indebtedness that is pari passu with, or subordinate in right of payment to, the Notes, in each case in accordance with the Notes containing provisions similar Section 3.08 hereof, to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount of the Notes or any other Indebtedness being repurchased plus accrued and unpaid interest, if any, to the date of purchase, prepayment purchase (or redemption, subject to the rights of Holders 100% of the Notes on accreted value thereof, in the relevant record date to receive interest due on the relevant interest payment datecase of other Indebtedness that was initially offered and sold at a discount), and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other Indebtedness (or accreted value, as applicable) tendered in into such Asset Sale Offer offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee Excess Proceeds will select be applied in the following way: (a) first, the Excess Proceeds will be applied to purchase the Notes to be purchased and other pari passu Indebtedness tendered for purchase, on a pro rata basis (except that if the aggregate principal amount of such Notes and pari passu Indebtedness exceeds the amount of Excess Proceeds), and (b) second, if and to the extent any Excess Proceeds remain after the purchase of all of the Notes represented by a Note in global form and other pari passu Indebtedness tendered for purchase, the remaining Excess Proceeds will be selected by such method as DTC or its nominee or successor may require orapplied to purchase any subordinated Indebtedness tendered for purchase, where such nominee or successor is the Trustee, on a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other federal or state securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 3.08 hereof or this Section 4.10, the Company will shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or those provisions of this Section 4.10 Indenture by virtue of such complianceconflict.
Appears in 2 contracts
Samples: Indenture (Medco Health Solutions Inc), Indenture (Medco Health Solutions Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(ai) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(bii) either (x) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash EquivalentsEquivalents or (y) the Fair Market Value of all forms of consideration other than cash and Cash Equivalents received for all Asset Sales since March 13, 2007 does not exceed in the aggregate 10% of the Adjusted Consolidated Net Tangible Assets of the Company at the time each determination is made. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash within 180 days after the date of the Asset Sale, to the extent of the cash received in that conversion;
(4C) any Capital Stock stock or assets of the kind referred to in clause clauses (2ii) or (4iv) of Section 4.10(c)10.12(b) below; and
(5D) any Designated Non-cash Consideration received accounts receivable of a business retained by the Company or any Restricted Subsidiary, as the case may be, following the sale of such Restricted Subsidiary in business, provided that such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause accounts receivable (e), 1) are not to exceed an amount equal to 5.0% past due more than 90 days and (2) do not have a payment date greater than 120 days from the date of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of invoice creating such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in valueaccounts receivable.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may may:
(i) apply such Net Proceeds at its option to any combination of the following:repay Senior Debt;
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or apply such Net Proceeds to invest in Additional Assets;
(iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any apply such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) Net Proceeds to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement a Related Business of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries Subsidiaries; or
(iv) enter into a bona fide binding contract with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest to apply the Net Proceeds in any manner pursuant to clauses (ii) or (iii) above, provided that such binding contract shall be treated as a permitted application of the Net Proceeds from the date of such contract until the earlier of:
(A) the date on which such acquisition or expenditure is not prohibited by this Indentureconsummated, and
(B) the 180th day following the expiration of the aforementioned 360-day period. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(cclauses (i) through (iv) above will constitute “Excess Proceeds.” When ”
(c) On the 361st day (or upon the failure to close the contract referred to in clause (iv) of Section 10.12(b) above within the 180 day time period thereafter) after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $20.0 40.0 million, within five days thereof, the Company will make an offer (an the “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets assets, to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(d) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company, or of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by Sections 8.1 and/or 10.15 of this Indenture, as applicable, and not by this Section 10.12.
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the Asset Sale provisions of this Section 4.10Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such compliance.
Appears in 2 contracts
Samples: Tenth Supplemental Indenture (Plains Exploration & Production Co), Ninth Supplemental Indenture (Plains Exploration & Production Co)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(ai) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed ofof (except in respect of Designated Assets sold pursuant to a Designated Asset Contract);
(ii) the fair market value or Designated Asset Value, as applicable, in the case of any Asset Sales or series of related Asset Sales having a fair market value of $25.0 million or more, is determined by the Company’s Board of Directors and evidenced by a resolution of Board of Directors set forth in an Officers’ Certificate delivered to the Trustee; and
(biii) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provisionSection 4.10(a)(iii) only, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents within 90 days after the applicable Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion;
(43) notes or other obligations or Indebtedness actually received by the Company or any Capital Stock such Restricted Subsidiary as consideration for the sale or assets other disposition of a Designated Asset pursuant to a Designated Asset Contract, but only to the extent that such notes or other obligations or Indebtedness were explicitly required to be included, or permitted to be included solely at the option of the kind referred purchaser, in such consideration pursuant to in clause (2) or such contract;
(4) Indebtedness actually received by the Company or any such Restricted Subsidiary as consideration for the sale or other disposition of Section 4.10(can Unoccupied Facility, in an aggregate principal amount, in any fiscal year of the Company, when taken together with all Indebtedness received as consideration pursuant to this clause (4) since the date hereof (but, to the extent that the principal of any Indebtedness received pursuant to this clause (4) is repaid in cash or such Indebtedness is sold or otherwise liquidated for cash, minus the amount of such cash received), not to exceed $20 million; and
(5) any Designated Non-cash Cash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale, in an aggregate amount in any fiscal year of the Company (measured on the date such Designated Non-Cash Consideration was received without giving effect to subsequent changes in value), when taken together with all other Designated Non-Cash Consideration received as consideration pursuant to this clause (5) during such fiscal year (but, to the extent that any such Designated Non-Cash Consideration is sold or otherwise liquidated for cash, minus the lesser of (x) the amount of the cash received (less the cost of disposition, if any) and (y) the initial amount of such Designated Non-Cash Consideration), not to exceed $25 million.
(b) Notwithstanding subsection (a) of this Section 4.10, the Company and its Restricted Subsidiaries may engage in Asset Swaps; provided that:
(i) immediately after giving effect to such Asset Swap, the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof; and
(ii) the Board of Directors of the Company determines that the fair market value of the assets received by the Company or the Restricted Subsidiary in the Asset Swap is not less than the fair market value of the assets disposed of by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% Swap and such determination is evidenced by a resolution of the Company’s Adjusted Consolidated Net Tangible Assets (determined at Board of Directors set forth in an Officers’ Certificate delivered to the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in valueTrustee.
(c) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the applicable Restricted Subsidiary may apply those Net Proceeds, at its option:
(or any i) to repay permanently Indebtedness under the Credit Agreement (and with respect to Net Proceeds of a Restricted Subsidiary that is not a Guarantor, Indebtedness of such Restricted Subsidiary) may apply such Net Proceeds at its option and, if the Indebtedness permanently repaid is revolving credit Indebtedness, to any combination of the following:correspondingly reduce commitments with respect thereto;
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock to acquire, or (iii) Indebtedness owed enter into a definitive agreement to an Affiliate of the Company;
(2) to acquire acquire, all or substantially all of the assetsassets of, a Permitted Business or any Capital Stock, a majority of one or more other Persons primarily the Voting Stock of a Person engaged in the Oil and Gas a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, provided that such Person becomes a Restricted Subsidiary and provided further, however, in the case of the Companya definitive agreement, that such acquisition closes within 120 days of such 360 day period;
(3iii) to make a capital expenditures expenditure in respect or that is used or useful in a Permitted Business (provided that the completion of (a) construction of new facilities, (b) expansions to existing facilities and (c) repair or construction of damaged or destroyed facilities, in each case, which commences within such 360 days may extend for an additional 360 day period if the Company’s Net Proceeds to be used for such construction, expansion or any Restricted Subsidiaries’ Oil and Gas Businessrepair are committed specifically for such activity within such 360 days); or
(4iv) to acquire other long-term assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) the preceding paragraph, or that the Company determines will not be applied or invested as provided in the preceding paragraph, will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 25.0 million, within five days thereof, the Company will shall make an offer (an “Asset Sale Offer”) to all Holders of Notes and, at the Notes and Company’s option, all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets assets, to purchase, prepay or redeem, purchase on a pro rata basis, basis the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interestinterest and Liquidated Damages, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes to and such other pari passu Indebtedness shall be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(e) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the Asset Sale provisions of this Section 4.10Indenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such complianceconflict.
Appears in 2 contracts
Samples: Exhibit, Execution Version (Geo Group Inc)
Asset Sales. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash cash, Cash Equivalents or Cash EquivalentsReplacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown recorded on the Company’s most recent consolidated balance sheet, sheet of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) liabilities), that are assumed by the transferee of any such assets pursuant to and as a novation or indemnity agreement that releases result of which the Company and its Restricted Subsidiaries are no longer obligated with respect to such liabilities or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary are indemnified against further liabilityliabilities;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents within 180 days following the closing of the Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion;
(4c) any Capital Stock or assets of the kind referred to in clause (2Section 4.10(b)(3) or Section 4.10(b)(5) hereof;
(4d) Indebtedness of Section 4.10(c)any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of such Indebtedness in connection with such Asset Sale;
(e) consideration consisting of Indebtedness of the Issuer or any Guarantor received from Persons who are not the Company or any Restricted Subsidiary; and
(5f) any Designated Non-cash Consideration consideration other than cash, Cash Equivalents or Replacement Assets received by the Company or such any Restricted Subsidiary in such Asset Sale having an aggregate with a Fair Market Value, taken together with all other Designated Non-cash Consideration consideration received pursuant to this clause (e)f) that is at the time outstanding, not to exceed an amount equal to 5.0the greater of (i) $50.0 million and (ii) 1.0% of the Company’s Adjusted Consolidated Net Total Tangible Assets (determined at the time of the receipt of such Designated Non-cash Consideration)consideration, with the Fair Market Value of each item of Designated Non-cash Consideration such consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset SaleSale or an Event of Loss, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option to any combination of the followingProceeds:
(1) to repay, repurchase or redeem any Indebtedness purchase the Notes pursuant to an offer to all Holders of Notes at a purchase price equal to 100% of the Company or principal amount thereof, plus accrued and unpaid interest to (but not including) the date of purchase (a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the “Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the CompanyOffer”);
(2) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas another Permitted Business, if, ; provided that (a) after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Restricted Subsidiary and (b) to the extent the assets that were the subject of such Asset Sale or Event of Loss comprised part of the CompanyCollateral, the assets comprising such Permitted Business shall include a Replacement Vessel and Related Vessel Property for each Vessel and any Related Vessel Property subject to such Asset Sale or Event of Loss and such Replacement Vessel and Related Vessel Property shall be pledged as Collateral in accordance with Section 4.24;
(3) upon the sale of assets that do not constitute Collateral, to make a capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; orexpenditure;
(4) to acquire other assets that are (other than Capital Stock) not classified as current assets under GAAP and IFRS that are used or useful in a Permitted Business; provided that to the Oil extent the assets that were the subject of such Asset Sale or Event of Loss comprised part of the Collateral, the assets being acquired shall include a Replacement Vessel and Gas Business. The requirement Related Vessel Property for each Vessel and any Related Vessel Property subject to such Asset Sale or Event of clause Loss and such Replacement Vessel and Related Vessel Property shall be pledged as Collateral in accordance with Section 4.24;
(25) upon the sale of assets that do not constitute Collateral, (a) to permanently reduce or repay Obligations under a Credit Facility to the extent such Obligations were incurred under Section 4.09(b)(1) and to correspondingly reduce any outstanding commitments with respect thereto, (b) to repurchase, prepay, redeem or repay Indebtedness of a Restricted Subsidiary which is not the Issuer or a Guarantor, or Indebtedness of the Issuer or any Guarantor that is secured by a Lien on such assets or (4c) to repurchase, prepay, redeem or repay Indebtedness of a Restricted Subsidiary which is not the Issuer or a Guarantor which is pari passu in right of payment with the Notes or any Note Guarantee; provided, however, that if the Company or a Restricted Subsidiary shall so repurchase, prepay, redeem, or repay Indebtedness pursuant to Section 4.10(c4.10(b)(6)(c), the Company will make a Notes Offer for an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such pari passu Indebtedness; provided, further, that the Company shall be deemed to be have satisfied if a bona fide binding contract committing its obligation to make a Notes Offer if it otherwise equally and ratably reduces obligations under the investmentNotes through (x) open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or (y) as provided under Section 3.07 hereof; or
(6) enter into a binding commitment to apply the Net Proceeds pursuant to Section 4.10(b)(2), (b)(3) or (b)(4) above; provided that such binding commitment (or any subsequent commitments replacing the initial commitment that may be cancelled or terminated) shall be treated as a permitted application of the Net Proceeds from the date of such commitment until the earlier of (x) the date on which such acquisition or expenditure referred to therein is entered into by consummated and (y) the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate 180th day following the expiration of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. aforementioned 360 day period.
(c) Pending the final application of any Net ProceedsProceeds from an Asset Sale or Event of Loss, (i) to the extent such assets do not constitute Collateral, the Company (or any the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. , and (ii) to the extent such assets constitute part of the Collateral, the Company (or the applicable Restricted Subsidiary) will deposit such Net Proceeds into a separate account for the benefit of the Secured Parties and the Company (or the applicable Restricted Subsidiary) shall promptly execute and deliver such security instruments, financing statements and certificates and opinions of counsel as shall be reasonably necessary or advisable to vest in the Collateral Agent a perfected first-priority security interest in such account and to have such account added to the Collateral.
(d) Any Net Proceeds from an Asset Sales Sale or Event of Loss that are not applied or invested as provided in Section 4.10(c4.10(b) hereof (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes as described in Section 4.10(b)(1) or Section 4.10(b)(5) hereof shall be deemed to have been invested whether or not such Notes Offer is accepted) will constitute “Excess Proceeds.” ”. When the aggregate amount of Excess Proceeds exceeds $20.0 40.0 million, within five days ten Business Days thereof, the Company Issuer will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and may make an offer to all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 or any Note Guarantees with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase, prepay or redeem, on a pro rata basis, redeem the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interestinterest and Additional Amounts, if any, to but not including the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary Issuer 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 (or to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, or if the aggregate amount of Notes tendered pursuant to a Notes Offer exceeds the amount of the Net Proceeds allocated to the purchase of Notesso applied, the Trustee will select the Notes and such other pari passu Indebtedness, if applicable, to be purchased on a pro rata basis (except that any Notes represented by a Note or in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by lawmanner described in Section 3.02 hereof), based on the amounts tendered (with such adjustments as may or required to be deemed appropriate by the Company so that only Notes in denominations of $2,000, prepaid or an integral multiple of $1,000 in excess thereof, will be purchased)redeemed. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company Issuer may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale or an Event of Loss by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the relevant 360 days (or such longer period provided above) or with respect to Excess Proceeds of $40.0 million or less.
(e) The Issuer will comply with the requirements of Rule 14e-1 under the U.S. Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Change of Control Offer, an Asset Sale Offer or a Notes Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 hereof or the Change of Control Offer, Asset Sale Offer or Notes Offer provisions of this Section 4.10Indenture, the Company Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or the Change of Control Offer, Asset Sale Offer or Notes Offer provisions of this Section 4.10 Indenture by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD)
Asset Sales. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash cash, Cash Equivalents or Cash EquivalentsReplacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown recorded on the Company’s most recent consolidated balance sheet, sheet of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) liabilities), that are assumed by the transferee of any such assets pursuant to and as a novation or indemnity agreement that releases result of which the Company and its Restricted Subsidiaries are no longer obligated with respect to such liabilities or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary are indemnified against further liabilityliabilities;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents within 180 days following the closing of the Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion;
(4c) any Capital Stock or assets of the kind referred to in clause (2Section 4.10(b)(3) or Section 4.10(b)(5) hereof;
(4d) Indebtedness of Section 4.10(c)any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of such Indebtedness in connection with such Asset Sale;
(e) consideration consisting of Indebtedness of the Company or any Guarantor received from Persons who are not the Company or any Restricted Subsidiary; and
(5f) any Designated Non-cash Consideration consideration other than cash, Cash Equivalents or Replacement Assets received by the Company or such any Restricted Subsidiary in such Asset Sale having an aggregate with a Fair Market Value, taken together with all other Designated Non-cash Consideration consideration received pursuant to this clause (e)f) that is at the time outstanding, not to exceed an amount equal to 5.0the greater of (i) $50.0 million and (ii) 1.0% of the Company’s Adjusted Consolidated Net Total Tangible Assets (determined at the time of the receipt of such Designated Non-cash Consideration)consideration, with the Fair Market Value of each item of Designated Non-cash Consideration such consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option to any combination of the followingProceeds:
(1) to repay, repurchase permanently reduce or redeem any Indebtedness of the Company or repay Obligations under a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated Credit Facility to the Notes or the Note Guarantees, (iiextent such Obligations were incurred under Section 4.09(b)(1) Capital Stock or (iii) Indebtedness owed and to an Affiliate of the Companycorrespondingly reduce any outstanding commitments with respect thereto;
(2) to purchase the Notes pursuant to an offer to all Holders of Notes at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest to (but not including) the date of purchase (a “Notes Offer”);
(3) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Restricted Subsidiary of the CompanySubsidiary;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to make a capital expenditure;
(5) to acquire other assets that are (other than Capital Stock) not classified as current assets under GAAP and IFRS that are used or useful in the Oil and Gas a Permitted Business. The requirement ;
(6) to repurchase, prepay, redeem or repay Indebtedness (a) of clause (2) a Restricted Subsidiary which is not a Guarantor, or Indebtedness of any Guarantor that is secured by a Lien on such assets or (4b) which is pari passu in right of payment with the Notes or any Note Guarantee; provided, however, that if the Company or a Restricted Subsidiary shall so repurchase, prepay, redeem, or repay Indebtedness pursuant to Section 4.10(c4.10(b)(6)(b), the Company will make a Notes Offer for an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such pari passu Indebtedness; provided, further, that the Company shall be deemed to be have satisfied if a bona fide binding contract committing its obligation to make a Notes Offer if it otherwise equally and ratably reduces obligations under the investmentNotes through (x) open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or (y) as provided under Section 3.07 hereof; or
(7) enter into a binding commitment to apply the Net Proceeds pursuant to Section 4.10(b)(3), (b)(4) or (b)(5) above; provided that such binding commitment (or any subsequent commitments replacing the initial commitment that may be cancelled or terminated) shall be treated as a permitted application of the Net Proceeds from the date of such commitment until the earlier of (x) the date on which such acquisition or expenditure referred to therein is entered into by consummated and (y) the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate 180th day following the expiration of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. aforementioned 360 day period.
(c) Pending the final application of any Net ProceedsProceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from an Asset Sales Sale that are not applied or invested as provided in Section 4.10(c4.10(b) hereof (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes as described in Section 4.10(b)(2) or Section 4.10(b)(6) hereof shall be deemed to have been invested whether or not such Notes Offer is accepted) will constitute “Excess Proceeds.” ”. When the aggregate amount of Excess Proceeds exceeds $20.0 40.0 million, within five days ten Business Days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and may make an offer to all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 or any Note Guarantees with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase, prepay or redeem, on a pro rata basis, redeem the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interestinterest and Additional Amounts, if any, to but not including the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into (or to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, or if the aggregate amount of Notes tendered pursuant to a Notes Offer exceeds the amount of the Net Proceeds allocated to the purchase of Notesso applied, the Trustee will select the Notes and such other pari passu Indebtedness, if applicable, to be purchased on a pro rata basis (except that any Notes represented by a Note or in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by lawmanner described in Section 3.02 hereof), based on the amounts tendered (with such adjustments as may or required to be deemed appropriate by the Company so that only Notes in denominations of $2,000, prepaid or an integral multiple of $1,000 in excess thereof, will be purchased)redeemed. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the relevant 360 days (or such longer period provided above) or with respect to Excess Proceeds of $40.0 million or less.
(e) The Company will comply with the requirements of Rule 14e-1 under the U.S. Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Change of Control Offer, an Asset Sale Offer or a Notes Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 hereof or the Change of Control Offer, Asset Sale Offer or Notes Offer provisions of this Section 4.10Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or the Change of Control Offer, Asset Sale Offer or Notes Offer provisions of this Section 4.10 Indenture by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) Subsidiary receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is determined by the Company's Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and
(b3) at least 75% of the aggregate consideration therefor received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalentscash. For purposes of this provision, each of the following will shall be deemed to be cash:
(1A) any liabilities, as shown on the Company’s 's most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 30 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5C) any Designated Nonlong-cash Consideration received by the Company term assets that are used or such Restricted Subsidiary useful in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) a Permitted Business. Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the followingoption:
(1) to repayrepay Senior Debt and, repurchase or redeem any Indebtedness of if the Company or a Restricted Subsidiary of the CompanySenior Debt repaid is revolving credit Indebtedness, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to correspondingly reduce commitments with respect thereto to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companyextent required by such revolving credit Indebtedness;
(2) to acquire all or substantially all of the assetsassets of, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary majority of the CompanyVoting Stock of, another Permitted Business;
(3) to make a capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Businessexpenditure; or
(4) to acquire other long-term assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any such Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) the preceding paragraph will constitute “"Excess Proceeds.” " When the aggregate amount of Excess Proceeds exceeds $20.0 5.0 million, within five 30 days thereof, the Company will make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets in accordance with Section 3.10 hereof to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interestinterest and Liquidated Damages, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation consumption of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with aggregate principal amount of Notes and such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)other pari passu Indebtedness properly tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 the provisions of Sections 3.10 or 4.10 of this Section 4.10Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or those provisions of this Section 4.10 Indenture by virtue of such complianceconflict.
Appears in 2 contracts
Samples: Indenture (Alltrista Corp), First Supplemental Indenture (Jarden Corp)
Asset Sales. The Company No Loan Party will, nor will not, and will not it permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unlesssell, transfer, lease or otherwise dispose of (or commit to sell, transfer, lease or otherwise dispose of) any asset, including any Equity Interest owned by it, nor will the Borrower permit any Subsidiary to issue any additional Equity Interest in such Subsidiary (other than to the Borrower or another Subsidiary in compliance with Section 6.04), except:
(a) sales, transfers and dispositions of (i) Inventory in the Company ordinary course of business and (ii) used, obsolete, worn out or a Restricted surplus Equipment or property in the ordinary course of business;
(b) sales, transfers and dispositions of assets to the Borrower or any Subsidiary, provided that any such sales, transfers or dispositions involving a Subsidiary that is not a Loan Party shall be made in compliance with Section 6.09;
(c) sales, transfers and dispositions of Accounts in connection with the compromise, settlement or collection thereof;
(d) sales, transfers and dispositions of Permitted Investments and other investments permitted by clauses (i) and (k) of Section 6.04;
(e) at any time before January 31, 2015, the sale of certain assets related to the Borrower’s ST-50 side-by-side utility vehicle and trailer and entry by the Borrower into a technology license agreement with Xxxxxxx International, Inc. or its Affiliate as buyer and licensee, in each case upon market terms as determined in good faith by the case may beBorrower and so long as such license is not materially adverse to the interests of the Lenders (collectively, the “ST-50 Transaction”);
(f) receives consideration dispositions resulting from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of, any property or asset of the Borrower or any Subsidiary; and
(g) sales, transfers and other dispositions of assets (other than Equity Interests in a Subsidiary unless all Equity Interests in such Subsidiary are sold) that are not permitted by any other clause of this Section, provided that (i) the aggregate fair market value of all assets sold, transferred or otherwise disposed of in reliance upon this paragraph (g) shall not exceed $500,000 during any fiscal year of the Borrower, (ii) no Default or Event of Default shall have occurred and be continuing at the time of such sale, transfer or other disposition or could be reasonably expected to result therefrom, and (iii) the Asset Sale at least equal to the Fair Market Value Net Proceeds therefrom are applied in accordance with Section 2.08(a); provided that all sales, transfers, leases and other dispositions permitted hereby (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
other than those permitted by paragraphs (b) and (e) above) shall be made for fair value and for at least 75% of the aggregate consideration received in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in valueconsideration.
(c) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: Credit Agreement (A.S.V., LLC), Credit Agreement (Manitex International, Inc.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets assets, properties or Equity Interests issued or sold or otherwise disposed of;
(2) the Fair Market Value is set forth in an Officers' Certificate delivered to the Trustee; and
(b3) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or cash, Cash Equivalents, Liquid Securities or Permitted Assets. For purposes of this provision, each of the following will be deemed to be cash:
(1i) any liabilities, as shown on the Company’s 's or such Restricted Subsidiary's most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Notes, any Mirror Note, any Mirror Note Guarantee or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3ii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that areare contemporaneously, within 180 days of the Asset Salesubject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 365 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary) Subsidiary may apply such those Net Cash Proceeds at its option to for any combination of the followingfollowing purposes:
(1) to repay, repurchase repay or redeem any prepay Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is not subordinated to the Notes Notes, any Mirror Note, any Mirror Note Guarantee or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companyany Subsidiary Guarantee;
(2) to acquire all or substantially all of the assetsassets of, or any Capital Stocka majority of the Voting Stock of, of one or more other Persons primarily engaged in the another Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Businessexpenditure; or
(4) to acquire other long-term assets that are not classified as current assets under GAAP and or properties that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Cash Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c4.10(b) will constitute “Excess Proceeds.” "EXCESS PROCEEDS". When the aggregate amount of Excess Proceeds exceeds $20.0 U.S.$10.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”"ASSET SALE OFFER") to all Holders of the Notes and all holders of other Indebtedness that is pari passu PARI PASSU with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu PARI PASSU Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other PARI PASSU Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes and such other PARI PASSU Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)PRO RATA basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(d) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase purchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the Asset Sale provisions of this Section 4.10Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such complianceconflict.
Appears in 2 contracts
Samples: Indenture (Paramount Resources LTD), Indenture (Paramount Resources LTD)
Asset Sales. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash cash, Cash Equivalents or Cash EquivalentsReplacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown recorded on the Company’s most recent consolidated balance sheet, sheet of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) liabilities), that are assumed by the transferee of any such assets pursuant to and as a novation or indemnity agreement that releases result of which the Company and its Restricted Subsidiaries are no longer obligated with respect to such liabilities or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary are indemnified against further liabilityliabilities;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents within 180 days following the closing of the Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion;
(4c) any Capital Stock or assets of the kind referred to in clause (2Section 4.10(b)(3) or Section 4.10(b)(5) hereof;
(4d) Indebtedness of Section 4.10(c)any Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Company and each other Restricted Subsidiary are released from any Guarantee of such Indebtedness in connection with such Asset Sale;
(e) consideration consisting of Indebtedness of the Company or any Guarantor received from Persons who are not the Company or any Restricted Subsidiary; and
(5f) any Designated Non-cash Consideration consideration other than cash, Cash Equivalents or Replacement Assets received by the Company or such any Restricted Subsidiary in such Asset Sale having an aggregate with a Fair Market Value, taken together with all other Designated Non-cash Consideration consideration received pursuant to this clause (e)f) that is at the time outstanding, not to exceed an amount equal to 5.0the greater of (i) $50.0 million and (ii) 1.0% of the Company’s Adjusted Consolidated Net Total Tangible Assets (determined at the time of the receipt of such Designated Non-cash Consideration)consideration, with the Fair Market Value of each item of Designated Non-cash Consideration such consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option to any combination of the followingProceeds:
(1) to repay, repurchase permanently reduce or redeem any Indebtedness of the Company or repay Obligations under a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated Credit Facility to the Notes or the Note Guarantees, (iiextent such Obligations were incurred under Section 4.09(b)(1) Capital Stock or (iii) Indebtedness owed and to an Affiliate of the Companycorrespondingly reduce any outstanding commitments with respect thereto;
(2) to purchase the Notes pursuant to an offer to all Holders of Notes at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest to (but not including) the date of purchase (a “Notes Offer”);
(3) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Restricted Subsidiary of the CompanySubsidiary;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to make a capital expenditure;
(5) to acquire other assets that are (other than Capital Stock) not classified as current assets under GAAP and IFRS that are used or useful in the Oil and Gas a Permitted Business. The requirement ;
(6) to repurchase, prepay, redeem or repay Indebtedness (a) of clause (2) a Restricted Subsidiary which is not a Guarantor, or Indebtedness of any Guarantor that is secured by a Lien on such assets or (4b) which is pari passu in right of payment with the Notes or any Note Guarantee; provided, however, that if the Company or a Restricted Subsidiary shall so repurchase, prepay, redeem, or repay Indebtedness pursuant to Section 4.10(c4.10(b)(6)(b), the Company will make a Notes Offer for an aggregate principal amount of Notes at least equal to the proportion that (x) the total aggregate principal amount of Notes outstanding bears to (y) the sum of the total aggregate principal amount of Notes outstanding plus the total aggregate principal amount outstanding of such pari passu Indebtedness; provided, further, that the Company shall be deemed to be have satisfied if a bona fide binding contract committing its obligation to make a Notes Offer if it otherwise equally and ratably reduces obligations under the investmentNotes through (x) open market purchases (to the extent such purchases are at or above 100% of the principal amount thereof) or (y) as provided under Section 3.07 hereof; or
(7) enter into a binding commitment to apply the Net Proceeds pursuant to Section 4.10(b)(3), (b)(4) or (b)(5) above; provided that such binding commitment (or any subsequent commitments replacing the initial commitment that may be cancelled or terminated) shall be treated as a permitted application of the Net Proceeds from the date of such commitment until the earlier of (x) the date on which such acquisition or expenditure referred to therein is entered into by consummated and (y) the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate 180th day following the expiration of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. aforementioned 360 day period.
(c) Pending the final application of any Net Proceeds, the Company (or any the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c4.10(b) hereof (it being understood that any portion of such Net Proceeds used to make an offer to purchase Notes as described in Section 4.10(b)(2) or Section 4.10(b)(6) hereof shall be deemed to have been invested whether or not such Notes Offer is accepted) will constitute “Excess Proceeds.” ”. When the aggregate amount of Excess Proceeds exceeds $20.0 40.0 million, within five days ten Business Days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and may make an offer to all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 or any Note Guarantees with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase, prepay or redeem, on a pro rata basis, redeem the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price for the Notes in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interestinterest and Additional Amounts, if any, to but not including the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into (or to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, or if the aggregate amount of Notes tendered pursuant to a Notes Offer exceeds the amount of the Net Proceeds allocated to the purchase of Notesso applied, the Trustee will select the Notes and such other pari passu Indebtedness, if applicable, to be purchased on a pro rata basis (except that any Notes represented by a Note or in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by lawmanner described in Section 3.02 hereof), based on the amounts tendered (with such adjustments as may or required to be deemed appropriate by the Company so that only Notes in denominations of $2,000, prepaid or an integral multiple of $1,000 in excess thereof, will be purchased)redeemed. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds prior to the expiration of the relevant 360 days (or such longer period provided above) or with respect to Excess Proceeds of $40.0 million or less.
(e) The Company will comply with the requirements of Rule 14e-1 under the U.S. Exchange Act and any other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Change of Control Offer, an Asset Sale Offer or a Notes Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 hereof or the Change of Control Offer, Asset Sale Offer or Notes Offer provisions of this Section 4.10Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or the Change of Control Offer, Asset Sale Offer or Notes Offer provisions of this Section 4.10 Indenture by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Viking Holdings LTD), Indenture (Viking Holdings LTD)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is determined in good faith by (a) the Company’s management, if the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of is less than or equal to $10.0 million, or (b) by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers’ Certificate delivered to the Trustee, if the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of exceeds $10.0 million; and
(b3) at least 75% of the aggregate consideration therefore received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalentscash. For purposes of this provision, each of the following will shall be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such that Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any that Restricted Subsidiary from such the transferee that areare contemporaneously, within 180 days of the Asset Salesubject to ordinary settlement periods, converted by the Company or such that Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) . Within 360 270 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such those Net Proceeds at its option to any combination of the followingoption:
(1) to repayrepay Senior Debt and, repurchase or redeem any Indebtedness of if the Company or a Restricted Subsidiary of the CompanySenior Debt repaid is revolving credit Indebtedness, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companycorrespondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assetsassets of, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary majority of the CompanyVoting Stock of, another Permitted Business;
(3) to make a capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Businessexpenditure; or
(4) to acquire other long-term assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any such Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) the preceding paragraph will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 15.0 million, within five days thereof, the Company will shall make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes Notes, and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof, to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will to Holders of Notes shall be equal to 100% of the principal amountamount of Notes offered to be repurchased, plus accrued and unpaid interestinterest and Special Interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will shall be payable in cash. If any Excess Proceeds remain after consummation the completion of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in such into an Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will shall select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon the completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each any repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.10, the Company will shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or those provisions of this Section 4.10 Indenture by virtue of such complianceconflict.
Appears in 2 contracts
Samples: Indenture (Johnson Polymer Inc), Indenture (Johnson Polymer Inc)
Asset Sales. (a) The Company will shall not, and will the Company shall not permit any of its the Restricted Subsidiaries to, directly or indirectly, consummate an any Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(b2) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash; provided, however, that to the extent that any disposition in such Asset Sale was of Collateral, the non-cash consideration received is pledged as Collateral under the Collateral Agreements contemporaneously with such sale, in accordance with the requirements set forth in this Indenture; and
(3) in the case of a Vessel Asset Sale of a Deepwater Vessel, the Company would, immediately after giving pro forma effect thereto, including the application of the net proceeds therefrom, as if the same had occurred on the first day of the applicable four-quarter period, (A) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth in Section 4.08(a) (“Incurrence of Indebtedness and Issuance of Preferred Stock”), or Cash Equivalents(B) have a Consolidated Interest Coverage Ratio that is no worse than the Consolidated Interest Coverage Ratio immediately prior to such Vessel Asset Sale. For purposes of this provisionSection 4.18, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a novation or indemnity agreement that releases so long as the Company or such Restricted Subsidiary are released from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes Notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash within 180 days of the receipt thereof, to the extent of the cash received in that conversion;
(4C) any Capital Stock stock or assets of the kind referred to in clause clauses (2) or (4) of paragraph (b) of this Section 4.10(c)4.18; and
(5D) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market ValueConsideration, when taken together with all other Designated Non-cash Consideration received pursuant to this clause (e)D) that is at that time outstanding, not to exceed an amount equal to 5.02.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of the receipt of such Designated Non-cash Consideration), Consideration (with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value). Any Asset Sale pursuant to an Involuntary Transfer shall not be required to satisfy the conditions set forth in clauses (1), (2) and (3) of this Section 4.18(a).
(cb) Within Subject to the terms of, and the relative priorities and related rights set forth in the Intercreditor Agreements, within 360 days after the receipt of any Net Proceeds from an Asset SaleSale (including, without limitation, an Involuntary Transfer), the Company (or any the applicable Restricted Subsidiary) , as the case may be, may apply such Net Proceeds at its option to any combination of the followingProceeds:
(1) to repay, repurchase or redeem any repay Indebtedness of the Company or a the Restricted Subsidiary Subsidiaries, including Notes and permanent reductions of Obligations under any Credit Facility (and, if the CompanyIndebtedness repaid is revolving credit Indebtedness, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companycorrespondingly reduce commitments with respect thereto);
(2) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, another Permitted Business of one or more other Persons primarily engaged in the Oil and Gas BusinessCompany, if, after giving effect to any such acquisition of Capital Stock, such Person Permitted Business is or becomes a Restricted Subsidiary of the CompanySubsidiary;
(3) to make a capital expenditures in respect expenditure for the Company or any of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Company’s Permitted Business. The requirement of clause ; provided that clauses (2) or through (4) of Section 4.10(c) above shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein herein is entered into by the Company or any of its Restricted Subsidiaries Subsidiary, as the case may be, with a Person other than an Affiliate of the Company within the time such 360-day period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days one year and six months following the date of such agreement Asset Sale. In the event any such contract is entered into. Pending the final application of later cancelled or terminated for any Net Proceeds, the Company (or any Restricted Subsidiary) may invest reason before the Net Proceeds are applied in any manner that is not prohibited by this Indenture. connection therewith, then such Net Proceeds must be applied as set forth herein and if such termination or cancellation occurs later than the 360-day period, shall constitute Excess Proceeds as set forth in Section 4.18(c).
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in paragraph (b) of this Section 4.10(c) 4.18 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 10.0 million, within five days thereof, the Company will shall, within ten (10) Business Days thereof, make an offer (an the “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes Pari Passu Obligations containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) Pari Passu Obligations that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. .
(d) The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interest, if any, interest to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. .
(e) If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. Indenture and the Collateral Agreements; provided that pending any such application, the proceeds of the Asset Sale, whether assets, property or cash, are subject to a Lien under the Collateral Agreements.
(f) If the aggregate principal amount of Notes and other Pari Passu Obligations tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will shall select the Notes and the Company shall select such other Pari Passu Obligations to be purchased on a pro rata basis (except basis, provided that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in applicable denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)the Notes are preserved. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will shall not, and the Company shall not permit any Restricted Subsidiary to, enter into or suffer to exist any agreement (other than the Indenture Documents, the Credit Agreement Documents, the Secured Convertible Collateral Agreements and the Intercreditor Agreements, similar documents entered into in accordance with the Indenture, and collateral documents creating Liens permitted to be incurred pursuant to Section 4.09 provided that such collateral documents do not contain terms materially less favorable to the Holders than those contained in the Collateral Agreements) that would place any restriction of any kind (other than pursuant to law or regulation) on the ability of the Company to make an Asset Sale Offer. The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the Asset Sale provisions of this Section 4.10Indenture, the Company will shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Vantage Drilling International), Indenture (Vantage International Management Pte Ltd.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its the Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
(ai) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed ofof (except in respect of Designated Assets sold pursuant to a Designated Asset Contract);
(ii) the Fair Market Value or Designated Asset Value, as applicable, in the case of any Asset Sales or series of related Asset Sales having a Fair Market Value of $35.0 million or more, is determined by the Company’s Board of Directors (or a duly appointed committee thereof) and evidenced by a resolution of the Board of Directors (or a duly appointed committee thereof) set forth in an Officer’s Certificate delivered to the Trustee; and
(biii) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provisionSection 4.10(a)(iii) only, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheetsheet or in the footnotes thereto, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to in right of payment or secured on a novation or indemnity agreement that releases junior basis on the Collateral and for which the Company or such Restricted Subsidiary from Subsidiary, as the case may be, have been released or indemnifies the Company or such Restricted Subsidiary indemnified against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents within 90 days after the applicable Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion;
(43) notes or other obligations or Indebtedness actually received by the Company or any Capital Stock such Restricted Subsidiary as consideration for the sale or assets other disposition of a Designated Asset pursuant to a contract with a governmental or quasi-governmental agency, but only to the extent that such notes or other obligations or Indebtedness were explicitly required to be included, or permitted to be included solely at the option of the kind referred purchaser, in such consideration pursuant to in clause (2) or such contract;
(4) 100% of Section 4.10(c)Indebtedness actually received by the Company or any Restricted Subsidiary as consideration for the sale or other disposition of an Unoccupied Facility; and
(5) any Designated Non-cash Cash Consideration received by the Company or any such Restricted Subsidiary in such the Asset Sale having Sale, in an aggregate Fair Market Valueamount in any fiscal year of the Company (measured on the date such Designated Non-Cash Consideration was received without giving effect to subsequent changes in value), when taken together with all other Designated Non-cash Cash Consideration received as consideration pursuant to this clause (e5) during such fiscal year (but, to the extent that any such Designated Non-Cash Consideration is sold or otherwise liquidated for cash, minus the lesser of (x) the amount of the cash received (less the cost of disposition, if any) and (y) the initial amount of such Designated Non-Cash Consideration), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value$50.0 million.
(cb) Within 360 180 days after from the later of the date of an Asset Sale or the receipt of any Net Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds Proceeds, at its option to any combination of the followingoption:
(1i) to prepay, repay, repurchase redeem or redeem any purchase (A) for so long as the Indebtedness incurred under the Credit Agreements as of the Company or a Restricted Subsidiary of the CompanyIssue Date remains outstanding, other than (i) Indebtedness of an Issuer under such Credit Agreements or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock Indebtedness otherwise permitted to be prepaid, repaid, redeemed or purchased under such Credit Agreements and (B), thereafter, (i) other Indebtedness and other Obligations that are secured by a Lien or (iiiii) the 2023 Notes, the 2024 Notes, the 2026 Notes and the Exchangeable 2026 Notes, and, in each case, if the Indebtedness owed repaid is revolving credit Indebtedness, to an Affiliate of the Companycorrespondingly reduce commitments with respect thereto;
(2ii) to acquire acquire, or enter into a definitive agreement to acquire, all or substantially all of the assetsassets of, a Permitted Business or any Capital Stock, a majority of one or more other Persons primarily the Voting Stock of a Person engaged in the Oil and Gas a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, ; provided that such Person becomes a Restricted Subsidiary and provided however, in the case of the Companya definitive agreement, that such acquisition closes within 120 days of such 180-day period;
(3iii) to make a capital expenditures expenditure in respect or that is used or useful in a Permitted Business (provided that the completion of (a) construction of new facilities, (b) expansions to existing facilities and (c) repair or construction of damaged or destroyed facilities, in each case, which commences within such 180-day period may extend for an additional 18 month period if (x) the Company’s Net Proceeds to be used for such construction, expansion or any Restricted Subsidiaries’ Oil repair are committed specifically for such activity within such 180-day period and Gas Business; or(y) such facilities shall, following such construction, expansion or repair, become Collateral pursuant to the terms and conditions set forth under Section 12.06);
(4iv) to acquire other long-term assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(v) any combination of the Oil foregoing. Notwithstanding the above, within 180 days from the later of the date of an Asset Sale relating to, or the receipt of any Net Proceeds from an Asset Sale relating to, B.I. Incorporated or a material portion of its business or sale (including Sale and Gas Business. The requirement of clause (2) or (4Leasebacks Transactions) of Section 4.10(cGEO HQ, the Company (or the applicable Restricted Subsidiary, as the case may be) shall be deemed must apply such Net Proceeds to be satisfied if a bona fide binding contract committing prepay, repay, redeem or purchase First Lien Secured Obligations or to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph Asset Sale Offer as described below and such Net Proceeds are subsequently shall not be permitted to be applied as set forth in accordance with such contract within 180 days following the date such agreement is entered intoclauses (ii) – (v) above. Pending the final application of any Net Proceeds, the Company (or any the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds as cash or in any manner that is not prohibited by this Indenture. Cash Equivalents.
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in clause (b) of this Section 4.10(c4.10, or that the Company determines will not be applied or invested as provided in clause (b) will of this Section 4.10, shall constitute “Excess Proceeds.” When (1) the amount of Excess Proceeds received from any individual Asset Sale exceeds $7.5 million or (2) the aggregate amount of Excess Proceeds received (x) during any fiscal year of the Company exceeds $20.0 22.5 million or (y) at any time during the term of the Notes exceeds $75.0 million, within five days thereof, the Company will shall make an offer (an “Asset Sale Offer”) to all Holders of Notes and, at the Notes and Company’s option, all holders of other Indebtedness that is pari passu in right of payment and lien priority with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets assets, to purchase, prepay or redeem, purchase on a pro rata basis, basis the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes to and such other pari passu Indebtedness shall be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company will may satisfy the foregoing obligations with respect to any Net Proceeds prior to the expiration of the relevant 180-day period (or later period as described above) or with respect to Excess Proceeds in an amount equal to or less than the amount set forth in clause (1), (2)(x) or (2)(y), as applicable, of the first sentence of this clause (c).
(d) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the Asset Sale provisions of this Section 4.10Indenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Geo Group Inc), Indenture (Geo Group Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) other than in the case of an Event of Loss, the Company (or a the Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed ofof (as determined at the time the Company or the Restricted Subsidiary executes a binding agreement or otherwise becomes obligated to make such Asset Sale); and
(b2) other than in the case of an Event of Loss, at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provisionprovision (but not for purposes of determining the Net Proceeds from any Asset Sale), each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet or as would be reflected on a balance sheet, of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash within 90 days after their receipt, to the extent of the cash received in that conversion;; and
(4C) any Capital Stock stock or assets of the kind referred to in clause (2Sections 4.10(b)(2) or (4) of Section 4.10(c4.10(b)(3); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 365 days after the receipt of any Net Proceeds from an Asset SaleSale of Notes Priority Collateral, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option to any combination of the followingoption:
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(32) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4x) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business and will constitute Notes Priority Collateral and/or (y) to make expenditures for maintenance, repair or improvement of existing properties and assets; or
(3) in any combination of the Oil applications described in the foregoing clauses (1) and Gas Business. The requirement of clause (2).
(c) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net ProceedsProceeds from an Asset Sale of Notes Priority Collateral, the Company (or any the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Cash Equivalents.
(d) Any Net Proceeds from Asset Sales of Notes Priority Collateral that are not applied or invested as provided in Section 4.10(c4.10(b) within 365 days after the receipt of such Net Proceeds from such applicable Asset Sale will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 10.0 million, within five 30 days thereof, the Company will be required to make an offer (an “Asset Sale Offer”) to all Holders of Notes to repurchase all or any part (equal to $2,000 or integral multiples of $1,000 in excess thereof) of each Holder’s Notes at the Notes and all holders of other Indebtedness purchase price described below; provided, however, that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal aggregate price payable in any Asset Sale Offer will not exceed such aggregate amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer purchase price with respect to the Notes in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interestinterest and Special Interest, if any, thereon to the date of purchase, prepayment or redemption, subject to proration in accordance with Section 3.02 in the event of oversubscription and to the rights of Holders of the Notes on the relevant regular record date to receive interest due on the relevant interest payment datedate that is on or prior to the applicable date of repurchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) In connection with any Asset Sale Offer, the Company will send a notice to each Holder, with a copy to the Trustee, describing the Asset Sale Offer and offering to repurchase Notes on the date for payment specified in the notice (the “Excess Proceeds Payment Date”), which date will be no earlier than 30 days and no later than 60 days from the date such notice is sent. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this Section 4.10 and the length of time the Asset Sale Offer will remain open;
(2) the Excess Proceeds amount, the purchase price and the Excess Proceeds Payment Date;
(3) that any Note not tendered or accepted for payment will continue to accrue interest;
(4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest on the Excess Proceeds Payment Date;
(5) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Notes or transfer the Notes by book-entry transfer, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Excess Proceeds Payment Date;
(6) that Holders will be entitled to withdraw tenders of their Notes if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Excess Proceeds Payment Date, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder tendered for purchase and a statement that such Holder is withdrawing its tender of such Notes; and
(7) that Holders whose Notes are purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess thereof. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue thereof.
(f) On the Excess Proceeds Payment Date, the Company will to the extent lawful:
(1) accept for payment all Notes or portions of Notes properly tendered pursuant to the Asset Sale Offer and not withdrawn (subject to proration in accordance with Section 3.02 in the event of oversubscription);
(2) deposit with the Paying Agent no later than 10:00 a.m. Eastern Time an amount equal to the aggregate purchase price to be paid in such complianceAsset Sale Offer in respect of Notes or portion of Notes properly tendered and not withdrawn; and
(3) deliver or cause to be delivered to the Trustee the Notes or portions of Notes properly accepted for payment together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased.
(g) The Paying Agent will promptly mail or wire transfer to each Holder of Notes or portions of Notes properly tendered and not withdrawn the purchase price payable with respect to such Notes or portions of Notes, and the Trustee will properly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered. Any Note or portion of Note accepted for payment pursuant to an Asset Sale Offer will cease to accrue interest on and after the Excess Proceeds Payment Date. The Company will publicly announce the results of any Asset Sale Offer on or as soon as practicable after the Excess Proceeds Payment Date.
(h) The Company will not be required to make an Asset Sale Offer if notice of redemption for all of the then outstanding Notes has been given pursuant to Article 3, unless and until there is a default in payment of the applicable redemption price.
(i) The Company may combine any Excess Cash Flow Offer with any Asset Sale Offer provided that the requirements set forth in this Indenture with respect to both the Excess Cash Flow Offer and the Asset Sale Offer are satisfied.
Appears in 2 contracts
Samples: Indenture (Alon Refining Krotz Springs, Inc.), Indenture (Alon USA Energy, Inc.)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, directly or indirectly, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to (a) the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets (other than Designated Assets) or Equity Interests issued or sold or otherwise disposed of and (b) the Designated Asset Value of the Designated Assets sold or otherwise disposed of;
(2) the fair market value or Designated Asset Value, as applicable, is determined by the Company's Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and
(b3) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalentscash. For purposes of this provisionclause (3) only, each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s 's or such Restricted Subsidiary's most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, are converted within 180 90 days of the applicable Asset Sale, converted Sale by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion;
(4c) any Capital Stock or assets 100% of the kind referred securities, notes or other obligations or Indebtedness actually received by the Company as consideration for the sale or other disposition of a Designated Asset pursuant to the terms of a Designated Asset Contract, but only to the extent that such securities, notes or other obligations or Indebtedness were explicitly required to be included, or permitted to be included solely at the option of the purchaser, in clause (2) or (4) such consideration pursuant to the terms of Section 4.10(c)the applicable Designated Asset Contract; and
(5d) any Designated Non-cash Consideration 100% of the Indebtedness actually received by the Company as consideration for the sale or other disposition of an Unoccupied Facility. Notwithstanding the foregoing, the Company and its Restricted Subsidiaries may engage in Asset Swaps; provided that, (1) immediately after giving effect to such Restricted Subsidiary Asset Swap, the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof and (2) the Board of Directors of the Company determines that the fair market value of the assets received by the Company in the Asset Swap is not less than the fair market value of the assets disposed of by the Company in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% Swap and such determination is evidenced by a resolution of the Company’s Adjusted Consolidated Net Tangible Assets (determined at Board of Directors set forth in an Officers' Certificate delivered to the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Trustee. Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such those Net Proceeds at its option to any combination of the followingProceeds:
(1) to repayrepay permanently Indebtedness under a Credit Facility and, repurchase or redeem any if the Indebtedness of the Company or a Restricted Subsidiary of the Companypermanently repaid is revolving credit Indebtedness, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companycorrespondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assetsassets of, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary majority of the CompanyVoting Stock of, another Permitted Business;
(3) to make a capital expenditures in respect expenditure (provided, that the completion of (i) construction of new facilities, (ii) expansions to existing facilities, and (iii) repair or reconstruction of damaged or destroyed facilities which commences within 360 days after the Company’s receipt of any Net Proceeds from an Asset Sale by the Company may extend for an additional 360 day period if the Net Proceeds to be used for such construction, expansion or any Restricted Subsidiaries’ Oil repair are committed to and Gas Business; orset aside specifically for such activity within 360 days of their receipt);
(4) to acquire other long-term assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; or
(5) with respect to the Oil and Gas Business. The requirement sale of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investmentNortheast Ohio Correctional Facility in Youngstown, acquisition or expenditure referred to therein is entered into by Ohio, the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate may use 50% of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with from such contract within 180 days following sale to repurchase, redeem or otherwise acquire or retire for value shares of the date such agreement is entered intoCompany's Series B Preferred Stock. Pending the final application of any Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. For avoidance of doubt, prior to being required to permanently reduce revolving credit facility commitments, the Company shall have the option of making an Asset Sale Offer in accordance with the terms of this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) will the preceding paragraph shall constitute “"Excess Proceeds.” When " Within five days of each date on which the aggregate amount of Excess Proceeds exceeds $20.0 15.0 million, within five days thereof, the Company will shall make an offer (an “Asset Sale Offer”) Offer to all Holders of Notes and, at the Notes and Company's option, all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount, amount plus accrued and unpaid interest, if any, interest to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the Asset Sale provisions of this Section 4.10Indenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such complianceconflict.
Appears in 2 contracts
Samples: Supplemental Indenture (Corrections Corp of America), Supplemental Indenture (Cca Properties of America LLC)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a) the Company (or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture Start Date is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e)5) since the date of this Indenture, not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer the Company or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes Notes, with a copy to the Trustee, and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is in accordance with the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate applicable DTC procedures) unless otherwise required by law)law or applicable stock exchange or depositary requirements, based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in minimum denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Extraction Oil & Gas, Inc.), Indenture (Extraction Oil & Gas, Inc.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the The Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(b2) Except in the case of a Permitted Asset Swap, at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash within 120 days after such Asset Sale, to the extent of the cash received in that conversion;
(4C) any Capital Stock stock or assets of the kind referred to in clause clauses (2) or (45) of paragraph (b) of this Section 4.10(c)4.10; and
(53) any Designated Non-cash Consideration received by in the case of an Asset Sale that constitutes a Sale of Collateral, the Company (or such the applicable Restricted Subsidiary Subsidiary, as the case may be) promptly deposits the Net Proceeds therefrom immediately upon receipt thereof as Collateral in such Asset Sale having an aggregate Fair Market Valueaccount or accounts (each, taken together with all other Designated Non-cash Consideration received pursuant to this clause a “Collateral Proceeds Account”) held by or under the control of (e), not to exceed an amount equal to 5.0% for purposes of the Company’s Adjusted Consolidated Net Tangible Assets Uniform Commercial Code) or otherwise subject to a perfected security interest in favor of the Collateral Trustee or its agent to secure all Obligations with respect to the Notes; and
(determined 4) in the case of a Parent Distribution Asset Sale, Holders of at least a majority in aggregate principal amount of the time of receipt of then outstanding Notes have approved such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in valueParent Distribution Asset Sale.
(cb) Within 360 365 days after the receipt of any Net Proceeds from an Asset SaleSale other than a Sale of Collateral, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds Proceeds, at its option to any combination of the followingoption:
(1) to repay, repurchase or redeem any Indebtedness of Parity Lien Obligations; provided, that the Company Issuers offer to repay, repurchase or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to redeem the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companyon a pro rata basis;
(2) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged another Permitted Business (provided that in the Oil and Gas Business, if, after giving effect to case of any such acquisition of Capital Stock, such Person after giving effect thereto, the Permitted Business is or becomes a Restricted Subsidiary of the Company);
(3) to make capital expenditures repay Indebtedness (other than Secured Obligations) that is secured by a Permitted Lien on any assets that were sold in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; orsuch Asset Sale;
(4) to make a capital expenditure;
(5) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business;
(6) in the Oil and Gas Business. The requirement case of clause an Asset Sale (2other than a sale of an asset that had constituted Collateral at any time since the date of this Indenture) by a Restricted Subsidiary that is not a Guarantor, to repay, repurchase or (4) redeem Indebtedness of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any Restricted Subsidiary that is not contractually subordinated in right of payment to the Notes;
(7) in the case of any Parent Distribution Asset Sale approved by Holders of at least a majority in aggregate principal amount of the then outstanding Notes, the minimum distribution required to comply with Section 4.10(c) of the Radio One Indenture; or
(8) any combination of the foregoing clauses (1) through (7).
(c) Within 365 days after the receipt of any Net Proceeds from a Sale of Collateral, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds, at its Restricted Subsidiaries option:
(1) to purchase other assets that would constitute Collateral;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, a Permitted Business (provided that in the case of any such acquisition of Capital Stock, after giving effect thereto, the Permitted Business becomes a Guarantor or is merged into or consolidated with a Person the Company or any Guarantor);
(3) to repay Indebtedness (other than an Affiliate Secured Obligations) that is secured by a Lien on any Collateral that was sold in such Asset Sale that is prior to the lien on the Collateral in favor of Holders of Notes;
(4) to make a capital expenditure with respect to assets that constitute Collateral;
(5) in the case of any Parent Distribution Asset Sale approved by Holders of at least a majority in aggregate principal amount of the Company within then outstanding Notes, the time period specified in minimum distribution required to comply with Section 4.10(c) of the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following Radio One Indenture; or
(6) any combination of the date such agreement is entered into. foregoing clauses (1) through (5).
(d) Pending the final application of any Net ProceedsProceeds of an Asset Sale, other than a Sale of Collateral, the Company (or any the applicable Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(e) Any Net Proceeds from Asset Sales that are not applied or invested as provided in paragraph (b) or (c) of this Section 4.10(c) will 4.10 constitute “Excess Proceeds.” ”
(f) When the aggregate amount of Excess Proceeds exceeds $20.0 10.0 million, within forty-five (45) days thereof, the Company Issuers will make an a joint offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes Parity Lien Debt containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets in accordance with Section 3.08 hereof to purchase, prepay or redeem, on a pro rata basis, redeem the maximum principal amount of Notes and such other pari passu Indebtedness Parity Lien Debt (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, interest to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and Parity Lien Debt tendered into (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes and such other Parity Lien Debt to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law)basis, based on the amounts tendered (with such adjustments as may or required to be deemed appropriate by the Company so that only Notes in denominations of $2,000, prepaid or an integral multiple of $1,000 in excess thereof, will be purchased)redeemed. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Change of Control Offer or an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control or Asset Sale provisions of this Section 3.09 3.08 hereof or this Section 4.10, the Company Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 3.08 hereof or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Radio One, Inc.), Indenture (Radio One, Inc.)
Asset Sales. The (a) Following the Non-Cash Pay Period, the Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that areare contemporaneously, within 180 days of the Asset Salesubject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion;; and
(4C) any Capital Stock stock or assets of the kind referred to in clause clauses (2) or (4) of the next paragraph of this Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value4.10.
(cb) Within 360 Following the Non-Cash Pay Period, within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option to any combination of the followingProceeds:
(1) to repayrepay Indebtedness and other Obligations under a Credit Facility that are secured by a Lien and, repurchase or redeem any if the Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) repaid is revolving credit Indebtedness of an Issuer or a Guarantor that is subordinated permanently repaid, to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companycorrespondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Businessexpenditure; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make Following the investmentNon-Cash Pay Period, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending pending the final application of any Net ProceedsProceeds as described in this Section 4.10(b), the Company (or any the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any .
(c) Following the Non-Cash Pay Period, any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c4.10(b) hereof will constitute “Excess Proceeds.” When Following the Non-Cash Pay Period, when the aggregate amount of Excess Proceeds exceeds $20.0 25.0 million, within five ten days thereof, the Company will make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, redeem the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiumsPrepayment Premium, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus Prepayment Premium plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee (or Depositary) will select the Notes and the applicable party shall select such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by lawsubject to Applicable Procedures), based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof (or, in the case of PIK Notes, in minimum denominations of $1.00 and any integral multiple of $1.00 in excess thereof), will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(d) During the Non-Cash Pay Period, without the consent of a majority in aggregate principal amount of the outstanding Notes beneficially owned by all of the Designated Noteholders, the Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the aggregate Fair Market Value of Asset Sales in any fiscal year does not exceed $5.0 million;
(2) the Company (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(3) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or Cash Equivalents (as the term is defined in the Incorporated Covenants). For purposes of this provision, each of the following will be deemed to be cash:
(a) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies against further liability;
(b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are contemporaneously, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion; and
(c) any stock or assets of the kind referred to in clause (3) of the next paragraph of this covenant. During the Non-Cash Pay Period, within 180 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds:
(1) to repay Indebtedness and other Obligations under a Credit Facility that is secured by a Lien and, if the Indebtedness repaid is revolving credit Indebtedness that is permanently repaid, to correspondingly reduce commitments with respect thereto;
(2) to make a capital expenditure; or
(3) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business. During the Non-Cash Pay Period, any Net Proceeds from Asset Sales that are not applied or reinvested as provided in the second paragraph of this covenant will constitute “Excess Proceeds.” During the Non-Cash Pay Period, when the aggregate amount of Excess Proceeds exceeds $1.0 million, within ten days thereof, the Company will make an offer (an “Asset Sale Offer”) to all holders of Notes to purchase, prepay or redeem the maximum principal amount of Notes (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including Prepayment Premium, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds, or such lesser amount as agreed to by a majority in aggregate principal amount of the outstanding Notes beneficially owned by all of the Designated Noteholders. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus Prepayment Premium (if any) and accrued and unpaid interest, to the date of purchase, prepayment or redemption, subject to the rights of holders of Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If the aggregate principal amount of Notes tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee (or depositary) will select the Notes on a pro rata basis (subject to DTC procedures), based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof (or, in the case of PIK Notes, in minimum denominations of $1.00 and any integral multiple of $1.00 in excess thereof), will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Nuverra Environmental Solutions, Inc.), Indenture (Nuverra Environmental Solutions, Inc.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale Sale, unless:
(a1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) at least equal to the fair market value (measured at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration for such Asset Sale, together with all other Asset Sales since the Issue Date (on a cumulative basis), received by the Company or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture , is in the form of cash or Cash Equivalents. For purposes of this provision, ; provided that each of the following will be deemed to be cash:cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(1A) any liabilities, liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent consolidated balance sheet or in the notes thereto or, if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Company’s or a Restricted Subsidiary’s consolidated balance sheet or in the notes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or any Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any Note Guarantee) Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets pursuant (or a third party in connection with such transfer) or (ii) otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to a novation or indemnity agreement that releases the Company or such a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or indemnifies in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or such a Restricted Subsidiary against further liabilityinto cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(2C) any Designated Non-Cash Consideration received by the Company or a Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (i) $50.0 million and (ii) 5% of Adjusted Consolidated Net Tangible Assets of the Company at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value;
(D) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or a Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale;
(E) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 4.10(b)(2); and
(F) with respect to any Asset Sale of oil Oil and natural gas properties Gas Properties disposed of by the Company or any Restricted Subsidiary where in which the Company or such any Restricted Subsidiary retains an interest in such propertyinterest, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties Oil and Gas Properties and activities related thereto which agreed to be assumed by the transferee (or an Affiliate thereof) agrees to pay;
(3) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 365 days after the receipt of any Net Proceeds from an of any Asset SaleSale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company (or any a Restricted Subsidiary) , at its option, may apply such an amount equal to the Net Proceeds at its option to any combination of the followingfrom such Asset Sale:
(1) to repay, repurchase redeem or redeem any repurchase:
(A) Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect of Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Obligations owed to the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;Subsidiary; or
(2) to acquire all or substantially all of the assets, or make (a) an Investment in any Capital Stock, of one or more other Persons primarily engaged businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Company or any Restricted Subsidiary owning an amount of the Capital Stock of such business such that it constitutes or continues to constitute a Restricted Subsidiary, (b) capital expenditures, (c) other expenditures made with respect to Oil and Gas BusinessProperties, if, after giving effect to (d) acquisitions by the Company or any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company;
(3) to make capital expenditures in respect of the Company’s Company or any Restricted Subsidiaries’ Oil Subsidiary of other assets, other than securities, in the case of clauses (a),(d) and Gas Business; or
this clause (4e), either (i) to acquire other assets that are not classified as current assets under GAAP and that are or will be used or useful in the Oil and Gas Business. The requirement Business or (ii) that replace, in whole or in part, the properties or assets that are the subject of such Asset Sale; provided that in the case of this clause (2) or (4) ), a binding commitment will be treated as a permitted application of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by Net Proceeds from the date of such commitment so long as the Company or a Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Net Proceeds); provided, further, that if any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such commitment is later cancelled or terminated for any reason before such Net Proceeds are subsequently applied in accordance with applied, then such contract within 180 days following Net Proceeds will constitute Excess Proceeds (as defined below); or
(3) any combination of the date such agreement is entered into. foregoing.
(c) Pending the final application of the amount of any Net ProceedsProceeds pursuant to this covenant, the Company (Issuers and their Restricted Subsidiaries may temporarily reduce Indebtedness, or any Restricted Subsidiary) may invest the otherwise use such Net Proceeds in any manner that is not prohibited by this the Indenture. Any .
(d) The amount equal to the Net Proceeds from Asset Sales that are not invested or applied or invested as provided and within the time period set forth in Section 4.10(c4.10(b) will be deemed to constitute “Excess Proceeds.” ”. When the aggregate amount of Excess Proceeds exceeds $20.0 50.0 million, within five days thereof, the Company Issuers will make an offer (an “Asset Sale Offer”) to all Holders and, at the option of the Notes and all Issuers, to any holders of other any Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes (“Pari Passu Indebtedness” and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expensesoffer, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an “Asset Sale Offer”), to purchase the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the maximum aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes and such Pari Passu Indebtedness that is in an amount equal to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of at least $2,000, or an integral multiple of $1,000 in excess of $2,000, that may be purchased out of the Excess Proceeds at an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, will if less), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other price, if any, as may be purchasedprovided for by the terms of such Pari Passu Indebtedness), to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures set forth in Section 3.09 (or, in respect of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). Upon completion of each The Issuers will commence an Asset Sale Offer, Offer with respect to Excess Proceeds within 30 days after the date that the amount of Excess Proceeds exceeds $50.0 million by mailing or electronically delivering the notice required pursuant to Section 3.09, with a copy to the Trustee, or otherwise in accordance with Applicable Procedures. The Issuers may satisfy the foregoing obligation with respect to any Net Proceeds from an Asset Sale by making an offer to purchase Notes with respect to the amount of all or part of the available Net Proceeds (the “Advance Portion”) prior to the expiration of the Asset Sale Proceeds Application Period with respect to the amount of all or a part of the available Net Proceeds in advance of being required to do so by this Indenture (the “Advance Offer”). To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds (or in the case of an Advance Offer, the Advance Portion), the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in any manner not prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the Pari Passu Indebtedness surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance Offer, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will select the Notes to be purchased in the manner described under Section 3.02 and the Issuers will select such Pari Passu Indebtedness to be purchased pursuant to the terms of such Pari Passu Indebtedness; provided that as between the Notes and any Pari Passu Indebtedness, such purchases will be made on a pro rata basis based on the accreted value or principal amount of the Notes or such Pari Passu Indebtedness tendered with adjustments as necessary so that no Notes or Pari Passu Indebtedness will be repurchased in part in an unauthorized denomination. Upon completion of any such Asset Sale Offer, for purposes of this provision the amount of Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) that resulted in the Asset Sale Offer or Advance Offer will be reset to zero (regardless of whether there are any remaining Excess Proceeds (or Advance Portion) upon such completion). An Asset Sale Offer or Advance Offer may be made at zero. the same time as consents are solicited with respect to an amendment, supplement or waiver of this Indenture, Notes and/or Guarantees (but the Asset Sale Offer or Advance Offer may not condition tenders on the delivery of such consents).
(e) [Reserved].
(f) The Company Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and or regulations are applicable in connection with each the repurchase of the Notes pursuant to an Asset Sale Offer or Advance Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the provisions of this Section 4.10Indenture, the Company Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or described in this Indenture by virtue thereof.
(g) The Issuers’ obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 by virtue may be waived or modified with the written consent of such compliancethe Holders of a majority in principal amount of the then outstanding Notes.
Appears in 2 contracts
Samples: Indenture (Vine Energy Inc.), Indenture (Vine Resources Inc.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration (including by way of relief from, or by any Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors and, if such fair market value exceeds $50.0 million, is set forth in an Officers’ Certificate delivered to the Trustee; and
(b3) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash cash, Cash Equivalents or Cash Equivalentsassets or Voting Stock of a type referred to in clauses (2), (3) or (4) of paragraph (b) of this Section 5.12. For purposes of this provisionSection 5.12, each of the following will shall be deemed to be cash:
(1A) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cash, cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received in that conversion;
(4) any Capital Stock or assets within 180 days of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such related Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in valueSale.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds may, at its option to any combination of the followingoption:
(1) apply such Net Proceeds to permanently repay, repurchase purchase or redeem any retire unsubordinated Indebtedness of the Company or a any Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the CompanySubsidiary;
(2) apply such Net Proceeds to acquire all or substantially all of the assetsassets of, or any Capital Stocka majority of the Voting Stock of, of one or more other Persons primarily engaged in another business reasonably related to the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary business of the Company;
(3) apply such Net Proceeds to make a capital expenditures expenditure used or useful in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; orbusiness;
(4) apply such Net Proceeds to acquire other long-term assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement Company’s business; or
(5) enter into a binding agreement with respect to the application of clause such Net Proceeds described in clauses (2), (3) or (4) of Section 4.10(c) this paragraph (b); provided that such binding agreement shall be deemed to be satisfied if treated as a bona fide binding contract committing to make permitted application of the investment, Net Proceeds from the date of such commitment until the earliest of (x) the date on which such acquisition or expenditure referred to therein is entered into by consummated, and (y) the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate 180th day following the expiration of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered intoaforementioned 360-day period. Pending the final application of any such Net Proceeds, the Company (or any Restricted Subsidiary) Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in paragraph (b) of this Section 4.10(c) 5.12 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 40.0 million, then within five 45 Business Days after the later of the application of Net Proceeds in accordance with paragraph (b) of this Section 5.12 and the date that is 360 days thereoffollowing the receipt of the Net Proceeds, to the extent of the balance of Net Proceeds after application in accordance with paragraph (b) of this Section 5.12, the Company will make an offer (an “Asset Sale Offer”) Offer to all Holders of Notes and, to the Notes and extent required or permitted under the terms of the instrument governing such Indebtedness, all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets assets, to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and and, to the extent required or permitted under the terms of the instrument governing such Indebtedness, such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interest, if any, to to, but not including, the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and, to the extent required or permitted under the terms of the instrument governing such Indebtedness, such other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will shall select the Notes and any such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with principal amount of Notes and any such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. .
(d) The Company will make the Asset Sale Offer in accordance with the procedures set forth in Section 4.08 hereof and will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the Asset Sale provisions of this Section 4.10Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or 4.08 hereof and this Section 4.10 5.12 by virtue of such complianceconflict.
Appears in 2 contracts
Samples: First Supplemental Indenture (Pilgrims Pride Corp), First Supplemental Indenture (Pilgrims Pride Corp)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time in respect of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b) either (x) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents(y) the Fair Market Value of all forms of consideration other than cash received for all Asset Sales since the Issue Date does not exceed in the aggregate 10% of the Consolidated Tangible Assets of the Company at the time each determination is made. For purposes of this provision, each of the following will be deemed to be cash:
(1i) any liabilities, as shown on the Company’s most recent consolidated balance sheet, sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities liabilities, Indebtedness that are is by their its terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets or Equity Interests pursuant to (1) a written novation or indemnity agreement that releases the Company or such Restricted Subsidiary from further liability therefor or indemnifies (2) an assignment agreement that includes, in lieu of such a release, the agreement of the transferee or its parent company to indemnify and hold harmless the Company or such Restricted Subsidiary from and against further any loss, liability or cost in respect of such assumed liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3ii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash within 270 days after the date of the Asset Sale, to the extent of the cash received in that conversion;
(4iii) any Capital Stock stock or assets of the kind referred to in clause clauses (2ii) or (4iv) of the next paragraph of this Section 4.10(c)5.8; and
(5iv) any Designated Non-cash Consideration received accounts receivable of a business retained by the Company or any Restricted Subsidiary, as the case may be, following the sale of such Restricted Subsidiary in business, provided, that such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), accounts receivable are not to exceed an amount equal to 5.0% past due more than 90 days and do not have a payment date greater than 120 days from the date of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of invoice creating such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) accounts receivable. Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any its Restricted SubsidiarySubsidiaries, as the case may be) may apply an amount equal to such Net Proceeds at its option to any combination of the followingoption:
(1i) to repay, redeem or repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the CompanySenior Debt;
(2ii) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily another Person engaged in the Oil and Gas a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person is or becomes a Restricted Subsidiary of the Company;
(3iii) to make a capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Businessexpenditure; or
(4iv) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment; provided, acquisition or expenditure referred to therein is entered into by however, that if, during such 360-day period, the Company or and/or any of its Restricted Subsidiaries enters into a binding contract with a Person other than an Affiliate of the Company within to apply such amount pursuant to clauses (ii) or (iii) above, then such 360-day period shall be extended until the time period specified in earlier of (a) the preceding paragraph date on which such acquisition or expenditure is consummated, and such Net Proceeds are subsequently applied in accordance with such contract within 180 days (b) the 180th day following the date such agreement is entered intoexpiration of the aforementioned 360-day period. Pending the final application of any Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the Net Proceeds in any manner that is not prohibited by this IndentureAgreement. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this Section 4.10(c) 5.8 will constitute “Excess Proceeds.” When If on any date, the aggregate amount of Excess Proceeds exceeds $20.0 million, then within five days thereoften Business Days after such date, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu in right of payment with the Notes containing provisions similar to those set forth in this Section 4.10 Agreement with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company or any and its Restricted Subsidiary Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this IndentureAgreement or the Notes. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will Holders shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. Notwithstanding anything in this Section 5.8 to the contrary, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, considered as a single enterprise, will be governed by Section 5.11 hereof and not by this Section 5.8. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the provisions of this Section 4.105.8, or compliance with the provisions of this Section 5.8 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 5.8 by virtue of such compliance. In the event that, pursuant to the preceding provisions of this Section 5.8, the Company is required to commence an Asset Sale Offer, it will follow the procedures specified below. The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Agreement with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to each of the Holders. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(i) that the Asset Sale Offer is being made pursuant to this Section 5.8 and the length of time the Asset Sale Offer will remain open;
(ii) the Offer Amount, the purchase price and the Purchase Date;
(iii) that any Note not tendered or accepted for payment will continue to accrue interest;
(iv) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;
(v) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;
(vi) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company;
(vii) that Holders will be entitled to withdraw their election if the Company receives, not later than the expiration of the 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 its election to have such Note purchased;
(viii) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Company will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000 and integral multiples of $1,000 in excess thereof, will be purchased); and
(ix) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Holders the Notes properly accepted together with an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 5.8. The Company will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company, will promptly issue a new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date.
Appears in 2 contracts
Samples: Note Purchase Agreement (Hall of Fame Resort & Entertainment Co), Note Purchase Agreement (Hall of Fame Resort & Entertainment Co)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the Fair Market Value is determined by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate delivered to the Trustee; and
(b3) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and from all other Asset Sales since February 25, 2011, in the date of this Indenture aggregate, is in the form of cash or Cash Equivalentscash. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a novation or indemnity customary agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, are converted within 180 90 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any such Restricted Subsidiary) Subsidiary may apply such those Net Proceeds at its option to any combination of the following:
(1) to repay, redeem or repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated not Subordinated Indebtedness (but excluding intercompany Indebtedness of the Company or any Guarantor to the Notes Company or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate any of the Companyits Affiliates);
(2) to acquire all or substantially all of the assets, properties or any Capital Stock, assets of one or more other Persons primarily engaged in the Oil and Gas Business, ifand, for this purpose, a division or line of business of a Person shall be treated as a separate Person so long as such properties and assets are acquired by the Company or a Restricted Subsidiary;
(3) to acquire a majority of the Voting Stock of one or more other Persons primarily engaged in the Oil and Gas Business, if after giving effect to any such acquisition of Capital Voting Stock, such Person is or becomes a Restricted Subsidiary of the CompanySubsidiary;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to make one or more capital expenditures; or
(5) to acquire other long-term assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any such Restricted Subsidiary) Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c4.10(b) hereof will constitute “Excess Proceeds.” When On the 361st day after an Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $20.0 25.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes pursuant to Section 3.09 hereof, and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets assets, to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. .
(d) The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemptionsettlement, subject to the rights right of Holders of the Notes on the relevant record date Record Date to receive interest due on an Interest Payment Date that is on or prior to the relevant interest payment datedate of settlement, and will be payable in cash. .
(e) If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. .
(f) If the aggregate principal amount of Notes and other Indebtedness ranking pari passu with the Notes tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Energy Xxi (Bermuda) LTD), Indenture (Energy Xxi (Bermuda) LTD)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (ai) the Company (or a the Restricted SubsidiarySubsidiary of the Company, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of, (ii) the fair market value is determined by the Board of Directors of the Company and evidenced by a resolution of that Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and
and (biii) at least 75% of the aggregate consideration therefor received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since Subsidiary, as the date of this Indenture is in the form case may be, consists of cash or Cash Equivalents. For purposes of this provision; provided, each however, that
(A) any liabilities of the following will be deemed to be cash:
Company (1) any liabilitiesor the Restricted Subsidiary of the Company, as the case may be), as shown on the Company’s its most recent consolidated balance sheet, of the Company or any Restricted Subsidiary sheet (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such the assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary transferor from or indemnifies the Company or such Restricted Subsidiary against further liability;
, (2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by from the Company or any Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are contemporaneously (subject to ordinary settlement periods) converted by the Company or such the Restricted Subsidiary into cash, cash (to the extent of the cash that cash), and (C) Additional Assets received in that conversion;
(4) any Capital Stock or an exchange-of-assets transaction shall all be deemed to be cash for purposes of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) provision. Within 360 days after the receipt by the Company or any of its Restricted Subsidiaries of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such Net Proceeds Proceeds, at its option to any combination of the following:
(1) to repayoption, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) to repay permanently Indebtedness of an Issuer or a Guarantor that is subordinated to pari passu with the Notes or and, if the Note GuaranteesIndebtedness repaid is revolving credit Indebtedness, to correspondingly reduce the lenders' commitments with respect thereto; (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assets, assets or any Capital Stock, a majority of one or more other Persons primarily the Voting Stock of another company that is engaged in the Oil and Gas a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
; (3iii) to make a capital expenditures expenditure in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas a Permitted Business; or
or (4iv) to acquire other assets Additional Assets; provided that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of Company will have complied with this clause (2iv) or (4) if, within 360 days of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investmentAsset Sale, acquisition or expenditure referred to therein is the Company has entered into by an agreement covering the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract acquisition which is thereafter completed within 180 days following after the date such agreement is entered intoof the agreement. Pending the final application of any such Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) will the first sentence of this paragraph shall be deemed to constitute “"Excess Proceeds.” When " Within five days of each date on which the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days thereof10,000,000, the Company will shall make an offer (an “Asset Sale Offer”) to all Holders of the Notes and Notes, as well as all holders of other Indebtedness that is pari passu with the Notes containing and that has the benefit of provisions requiring the Company to make a similar offer (an "Asset Sale Offer"), to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amountamount of Notes and other Indebtedness to be purchased, plus accrued and unpaid interestinterest and Liquidated Damages, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If The Company may use any Excess Proceeds remain remaining after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds Offer for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will shall select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company principal amount of Notes and other pari passu Indebtedness so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any all other applicable securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase purchase of Notes pursuant to an Asset Sale Offer. To the extent that If the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and by so doing will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance4.10.
Appears in 2 contracts
Samples: Indenture (Ames Department Stores Inc), Indenture (Ames Department Stores Inc)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a) the Company (or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, None of the Company or any Restricted Subsidiary will sell, transfer, lease or otherwise dispose of (including pursuant to any transfer or contribution to a Restricted Subsidiary), or exclusively license, any asset, including any Equity Interest owned by it, nor will any Restricted Subsidiary issue any additional Equity Interest in such Restricted Subsidiary (other than contingent liabilities to the Company or a Restricted Subsidiary, and liabilities other than directors’ qualifying shares and other nominal amounts of Equity Interests that are required to be held by their terms subordinated other Persons under Requirements of Law) (each, a “Disposition”; provided that an Economic IP Transfer shall not constitute a Disposition), except (provided the baskets in Section 6.06(i), (j), (k), (l) and (m) shall only be available on and following the Closing Date):
(a) Dispositions of inventory or used or surplus equipment in the ordinary course of business or of cash and Permitted Investments and the granting of non-exclusive licenses and sublicenses of Intellectual Property in the ordinary course of business;
(b) Dispositions to the Notes Company or any Note GuaranteeRestricted Subsidiary; provided that any such Dispositions involving a Restricted Subsidiary that is not a Guarantor Loan Party shall be made in compliance with Section 6.09; provided that no Disposition of Intellectual Property material to the business or operations of the Company and its Restricted Subsidiaries, taken as a whole, owned by a Guarantor Loan Party may be made to a Restricted Subsidiary that is not a Guarantor Loan Party pursuant to this clause (b);
(i) that are assumed by Dispositions of Receivables in connection with the transferee compromise or collection thereof in the ordinary course of business and not as part of any such assets Permitted Receivables Facility and (ii) Dispositions of Receivables pursuant to a novation Permitted Receivables Facility;
(d) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or indemnity agreement (ii) the proceeds of such disposition are promptly applied to the purchase price of such replacement property;
(e) any Permitted IP Transfer;
(f) sales by the Company or Restricted Subsidiaries of Receivables to one or more Receivables Subsidiaries in connection with any Permitted Receivables Facility; provided that releases (i) each such Permitted Receivables Facility is effected on terms which are considered customary for such a facility, as determined in good faith by the Company or such Restricted Subsidiary from or indemnifies Subsidiary, (ii) the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale aggregate amount of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest Seller’s Retained Interests in such propertyPermitted Receivables Facilities does not exceed an amount at any time outstanding that is customary for similar transactions, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, converted as determined in good faith by the Company or such Restricted Subsidiary into cash, and (iii) the proceeds to each such Receivables Subsidiary from the issuance of Third Party Interests are applied substantially simultaneously with the receipt thereof to the purchase from the Company or Restricted Subsidiaries of Receivables;
(g) [Reserved.];
(h) Dispositions of assets subject to any casualty or condemnation proceeding (including in lieu thereof);
(i) Dispositions of Investments in joint ventures to the extent of required by, or made pursuant to customary buy/sell arrangements between, the cash received joint venture parties set forth in that conversionjoint venture arrangements and similar binding arrangements;
(4j) Dispositions of assets that are not permitted by any Capital Stock or assets other clause of the kind referred to this Section; provided that all Dispositions made in reliance on this clause (2) or (4) of Section 4.10(c)shall be made for fair value and at least 75% Cash Consideration; and
(5) provided, further, that any Designated Non-cash Cash Consideration received by the Company or any of its Restricted Subsidiaries in respect of such Restricted Subsidiary in such Asset Sale sale, transfer, lease or other disposition having an aggregate Fair Market Valuefair market value, taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (e)that is at that time outstanding, not to exceed an amount equal to 5.0% in excess of the Company’s Adjusted Consolidated Net Tangible Assets (determined $100,000,000 at the time of the receipt of such Designated Non-cash Cash Consideration), with the Fair Market Value fair market value of each item of Designated Non-cash Cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing Cash Consideration;
(k) [Reserved.];
(l) Dispositions of assets related to make the investment, acquisition or expenditure referred to therein is entered into by business of the Company or any of and its Restricted Subsidiaries with a Person other than an Affiliate to one or more joint ventures in exchange for Equity Interests in such joint ventures; provided that the aggregate book value of all assets disposed of in reliance on this clause after the Effective Date shall not exceed the greater of (x) $200,000,000 and (y) 3.75% of Consolidated Total Assets as of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders end of the Notes and all holders of most recent Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) hereof;
(m) Restricted Payments permitted by Section 6.09(a); and
(n) sales, transfers, leases, subleases, licenses, sublicenses, cross-licenses or other Indebtedness that is pari passu with the Notes containing provisions similar dispositions to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company by NCR Parent or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply connection with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder Separation Transactions to the extent those laws and regulations are applicable the making thereof is consistent in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply all material respects with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such complianceForm 10.
Appears in 2 contracts
Samples: Credit Agreement (NCR Atleos Corp), Credit Agreement (NCR Atleos, LLC)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the Fair Market Value is determined by (a) an Officer of the Ultimate General Partner if the value is less than $40.0 million and evidenced by an Officers’ Certificate delivered to the Trustee, or (b) the Board of Directors of the Company if the value is $40.0 million or more and evidenced by a Board Resolution delivered to the Trustee; and
(b3) at least 75% of the aggregate consideration received by the Company and its Restricted Subsidiaries in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash EquivalentsEquivalents or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3b) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within 180 90 days of after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;; and
(4c) any Capital Stock stock or assets of the kind referred to in clause (2), (3) or (45) of the next succeeding paragraph of this Section 4.10(c); and
(5) any Designated Non-cash Consideration 4.10 received by the Company or such any Restricted Subsidiary in connection with such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) transaction. Within 360 days after the receipt of any Net Proceeds from an Asset Sale (or 720 days after the receipt of any Net Proceeds by any Foreign Subsidiary from an Asset Sale), the Company (or any Restricted Subsidiary) Subsidiary may apply such those Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase purchase, redeem or redeem otherwise retire Senior Debt (and in the case of repaying Senior Debt under any Indebtedness of the Company or revolving credit agreement to permanently reduce commitments thereunder by a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companycorresponding amount);
(2) to acquire all or substantially all of the assets, properties or any Capital Stock, assets of one or more other Persons a Person primarily engaged in the Oil and Gas a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect acquire a majority of the Company’s or any Restricted Subsidiaries’ Oil and Gas Voting Stock of a Person primarily engaged in a Permitted Business; or;
(4) to make capital expenditures; or
(5) to acquire other long-term assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause (2), (3), (4) or (45) of the preceding paragraph of this Section 4.10(c) 4.10 shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days six months following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) the preceding paragraph will constitute “Excess Proceeds.” When On the 361st day after the Asset Sale (or the 721st day after an Asset Sale by a Foreign Subsidiary or, in either case and, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $20.0 25.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes Notes, and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets assets, to purchase, prepay or redeem, on a pro rata basisbasis (except that any Notes represented by a Note in global form will be selected by such method as DTC may require), the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interestinterest and Special Interest, if any, to the date of purchase, prepayment or redemptionsettlement, subject to the rights right of Holders of the Notes on the relevant record date to receive interest due on the relevant an interest payment datedate that is on or prior to the date of settlement, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchasedrequire). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such complianceconflict.
Appears in 2 contracts
Samples: Indenture (Exterran Partners, L.P.), Indenture (Exterran Partners, L.P.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a any of its Restricted SubsidiarySubsidiaries, as the case may be) , receives consideration (including by way of relief from, or any Person assuming responsibilities for, any liabilities (other than any contingent liabilities)) at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received by the Company or its Restricted Subsidiaries in the Asset Sale (considered together on a cumulative basis, with all consideration received by the Company or a any of its Restricted Subsidiary and all Subsidiaries in respect of other Asset Sales consummated since the date of this Indenture Issue Date) is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s or any of its Restricted Subsidiaries’ most recent consolidated balance sheet, of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeSubordinated Debt) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement (or other legal documentation with the same effect) that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any of its Restricted Subsidiary Subsidiaries from such transferee that are, within 180 90 days of after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4C) any Capital Stock or assets Additional Assets of the kind referred to in clause (2) or (4) of Section 4.10(c4.10(b); and
(5D) any Designated Non-cash Consideration received by the Company or such any of its Restricted Subsidiary Subsidiaries in respect of such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in valueSale.
(cb) Within 360 365 days after the receipt of any Net Proceeds from an Asset SaleSale or, if the Company or any of its Restricted Subsidiaries has entered into a binding commitment or commitments with respect to any of the actions described in clauses (2) or (3) below, within the later of (x) 365 days after the receipt of any Net Proceeds from an Asset Sale and (y) 180 days after the entering into of such commitment or commitments, the Company (or any of its Restricted Subsidiary) Subsidiaries may apply an amount equal to the amount of such Net Proceeds at its option to any combination of the following:
(1) to repay, redeem or repurchase any Senior Debt, provided that such repayment, redemption or redeem any Indebtedness repurchase may close up to 60 days after the end of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companysuch 365-day period;
(2) to invest in or acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;Additional Assets; or
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas a Permitted Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any of its Restricted Subsidiary) Subsidiaries may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any .
(c) An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in clauses (1) through (3) of Section 4.10(c4.10(b) will constitute “Excess Proceeds.” When Within ten Business Days after the aggregate amount of Excess Proceeds exceeds $20.0 30.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets assets, to purchase, prepay or redeem, on a pro rata basis, repurchase the maximum principal amount of Notes and to purchase, prepay or redeem such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interestinterest and Liquidated Damages, if any, to the date of purchaserepurchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest and Liquidated Damages, if any, due on the relevant an interest payment datedate that is on or prior to the date of repurchase, prepayment or redemption, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any of its Restricted Subsidiary Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, 2,000 or an integral multiple of $1,000 in excess thereof, of $2,000 will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(d) Notwithstanding the foregoing paragraphs of this Section 4.10, the sale, conveyance or other disposition of all or substantially all of the properties or assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or Section 5.01 and not by this Section 4.10.
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, or compliance with this Section 4.10 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
(f) In the event that, pursuant to the preceding provisions of this Section 4.10, the Issuers are required to commence an Asset Sale Offer, the Issuers will follow the procedures specified below.
(1) The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.
(2) If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Liquidated Damages, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
(3) Upon the commencement of an Asset Sale Offer, the Company will send a notice to the Trustee and each of the Holders. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:
(A) that the Asset Sale Offer is being made pursuant to this Section 4.10 and the length of time the Asset Sale Offer will remain open;
(B) the Offer Amount, the purchase price and the Purchase Date;
(C) that any Note not tendered or accepted for payment will continue to accrue interest;
(D) that, unless the Issuers default in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;
(E) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in denominations of $2,000 or integral multiples of $1,000 in excess thereof;
(F) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(G) that Holders will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a letter or electronic transmission 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 and other pari passu Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Company will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000 and integral multiples of $1,000 in excess of $2,000 will be purchased); and
(I) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).
(4) On or before the Purchase Date, the Issuers will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 4.10. The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Issuers will promptly issue a new Note, and the Trustee, upon written request from the Issuers, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date.
Appears in 2 contracts
Samples: Indenture (Tetra Technologies Inc), Indenture (Compressco Partners, L.P.)
Asset Sales. The (a) Subject to Section 4.07(e), the Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
(a1) the Company (or a Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheetstatement of financial position, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes Securities or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4C) accounts receivable of a business retained by the Company or any of its Restricted Subsidiaries, as the case may be, following the sale of such business; provided that such accounts receivable (i) are not past due more than 90 days and (ii) do not have a payment date greater than 120 days from the date of the invoices creating such accounts receivable; and
(D) any Capital Stock or assets of the kind referred to in clause Section 4.07(c)(2) or Section 4.07(c)(4); provided, that in the case of any Asset Sale pursuant to a condemnation, appropriation or similar taking, including by deed in lieu of condemnation, such Asset Sale shall not be required to satisfy the requirements of items (1) and (2) or (4) of Section 4.10(c); andabove.
(5b) The Company will not, and will not permit any Designated Non-cash Consideration received by Restricted Subsidiary, to sell, grant, issue or otherwise enter into any Volumetric Production Payment, forward sale agreement or other sales of Hydrocarbons in place that would require the Company to deliver Hydrocarbons at some future time without then or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in valuethereafter receiving full prepayment therefor.
(c) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) Subsidiary may apply such Net Proceeds at its option to any combination of the followingProceeds:
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companyrepay Senior Indebtedness;
(2) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the CompanySubsidiary;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Subsidiary’s Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause ; provided, that clauses (2) or through (4) of Section 4.10(c) above shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein herein is entered into by the Company or any of its Restricted Subsidiaries Subsidiary, as the case may be, with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days six months following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) Subsidiary may invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c4.07(c) will shall constitute “Excess Proceeds.” When Within ten Business Days after the aggregate amount of Excess Proceeds exceeds $20.0 10.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders holders of the Notes Securities and all holders of other Indebtedness that is pari passu with the Notes Securities containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes Securities and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders holders of the Notes Securities on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes Securities tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesSecurities, the Trustee will select the Notes Securities to be purchased on a pro rata basis (except that any Notes Securities represented by a Note Security in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by lawrequire), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes Securities in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased) (or if a PIK Payment has been made, in denominations of $1.00 and any integral multiple of $1.00 in excess thereof with respect to a PIK Security or the portion of a Global Security constituting PIK Interest). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(e) Notwithstanding Sections 4.07(a), (c) and (d), the sale, conveyance or other disposition of all or more than 50% of the assets of the Company and its Restricted Subsidiaries, taken as a whole, shall be governed by the provisions of Section 4.18 hereof.
(f) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes Securities pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.104.07 or compliance with this Section 4.07 would constitute a violation of any such laws or regulations, the Company will shall comply with the such applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 4.07 by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Eclipse Resources Corp), Indenture (Eclipse Resources Corp)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets sold, leased, transferred, conveyed or otherwise disposed of or Equity Interests issued or sold of any Restricted Subsidiary of the Company issued, sold, transferred, conveyed or otherwise disposed of; and;
(b2) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provisionclause (2), each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any of its Restricted Subsidiary Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeNotes) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash within 90 days, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(53) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in delivers an officers' certificate to the trustee certifying that such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), complies with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received foregoing clauses (1) and without giving effect to subsequent changes in value.
(c) 2). Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or such Restricted Subsidiary may apply those Net Proceeds (or any Restricted Subsidiaryportion thereof) may apply such Net Proceeds at its option to any combination of the followingoption:
(1) to repay, repurchase or redeem any Indebtedness permanently repay Senior Debt of the Company or a Restricted Subsidiary of the Company, (other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an the Company or any Affiliate of the Company) and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assetsassets of, or any Capital Stockall of the Voting Stock of, of one or more other Persons primarily another Person engaged in the Oil and Gas a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;; or
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other long-term assets that are not classified as current assets under GAAP and or property that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause ; provided that a binding commitment to apply Net Proceeds as set forth in clauses (1), (2) or and (43) of Section 4.10(c) above shall be deemed to be satisfied if treated as a bona fide binding contract committing to make permitted application of the investment, acquisition or expenditure referred to therein is entered into by Net Proceeds from the date of such commitment so long as the Company or any of its such Restricted Subsidiaries Subsidiary enters into such commitment with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and good faith expectation that such Net Proceeds are subsequently will be applied in accordance with to satisfy such contract commitment within 180 days following of such commitment (an “Acceptable Commitment”) and, in the date event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, then the Company or such agreement is entered intoRestricted Subsidiary shall be permitted to apply the Net Proceeds in any manner set forth in clauses (1), (2) and (3) above before the expiration of such 180-day period, and, in the event the Company or such Restricted Subsidiary fails to do so, such Net Proceeds shall constitute Excess Proceeds (as defined below). Pending the final application of any Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) the preceding paragraph will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 10.0 million, within five days thereof, the Company will make an offer (an the “Asset Sale Offer”) to all Holders of notes to purchase the Notes and all holders maximum principal amount of notes and, if the Company is required to do so under the terms of any other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchaseNotes, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, such other Indebtedness on a pro rata basisbasis with the Notes, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interestinterest and Additional Interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of the purchase of all properly tendered and not withdrawn notes pursuant to an Asset Sale Offer, the Company or any Restricted Subsidiary may use those such remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes notes and other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the Asset Sale provisions of this Section 4.10Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.12 or Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 2 contracts
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale Sale, unless:
(a) the Company (or a any of its Restricted SubsidiarySubsidiaries, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture Issue Date is in the form of cash or Cash Equivalents. For the purposes of this provisionSection 4.16(b) and for no other purpose, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any of its Restricted Subsidiary Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed or otherwise forgiven by the transferee of any such assets pursuant to a novation novation, indemnity or indemnity other agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any of its Restricted Subsidiary Subsidiaries where the Company or such Restricted Subsidiary retains an interest in such property, the aggregate costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which that the transferee (or an Affiliate thereoftherefor) agrees to pay;
(3) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2Section 4.16(c)(2) or (4) of Section 4.10(c)hereof; and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (eSection 4.16(b)(5), not to exceed an amount equal to 5.03.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any one or more of its Restricted Subsidiary) Subsidiaries may apply an amount equal to the amount of such Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase or redeem any senior Indebtedness of the Company or any Subsidiary Guarantor, in each case owing to a Restricted Subsidiary of Person other than the Company, other than (i) Indebtedness of an Issuer any Restricted Subsidiary or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companyany Parent Entity;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any of its Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. .
(d) The requirement requirements of clause (2Section 4.16(c)(2) or (4) of Section 4.10(c) hereof shall be deemed to be satisfied if a bona fide binding contract committing commitment to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract commitment within 180 days following the date such agreement commitment is entered into. .
(e) Pending the final application of any Net Proceeds, the Company (or any of its Restricted Subsidiary) Subsidiaries may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any .
(f) Net Proceeds from Asset Sales that are not applied or invested as provided in paragraphs (c) and (d) of this Section 4.10(c) 4.16 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders Holders of other Indebtedness that is ranks pari passu in right of payment with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay or redeem such Indebtedness with the proceeds of sales of assets assets, to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Notes and other Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to to, but excluding, the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment dateInterest Payment Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any of its Restricted Subsidiary Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(g) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Change of Control Offer, Alternate Offer or an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 3.09, Section 4.15 or this Section 4.104.16, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 3.09, Section 4.15 or this Section 4.10 4.16 by virtue of such compliance.
Appears in 2 contracts
Samples: Indenture (Centennial Resource Development, Inc.), Indenture (Centennial Resource Development, Inc.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received by the Company and its Restricted Subsidiaries in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. Any Asset Sale pursuant to a condemnation, expropriation, appropriation, or other similar taking, including by deed in lieu of condemnation, shall not be required to satisfy the conditions set forth in Section 4.17(a)(1) above. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes Notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, are within 180 days of after the Asset Sale, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;; and
(4C) any Capital Stock stock or assets of the kind referred to in clause clauses (2) or (4) of Section 4.10(c4.17(b); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option to any combination of the followingProceeds:
(1) to repay, repurchase redeem, purchase, defease or redeem otherwise acquire, retire or terminate (a) Priority Debt and other outstanding Priority Obligations or any Indebtedness of secured by a Permitted Prior Lien or (b) to permanently repay, redeem or repurchase Parity Debt, other than Indebtedness owed to the Company or a any Restricted Subsidiary of Subsidiary; provided that if the Company shall so repay or reduce any such Parity Debt, the Company shall equally and ratably repay (or offer to repay) the Notes as provided either, at the Company’s option, other than (i) Indebtedness under Section 3.07 of this Indenture through open-market purchases at par or by making an Issuer or a Guarantor that is subordinated offer in accordance with the procedures set forth below for an Asset Sale Offer to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed all Holders to an Affiliate of the Companypurchase their Notes;
(2) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditures expenditure in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas a Permitted Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement In the case of clause (2) or (4) of this Section 4.10(c) 4.17(b), a binding commitment shall be deemed to be satisfied if treated as a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate permitted application of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with from the date of such contract within 180 days commitment until the earlier of (x) the date on which such acquisition is consummated, and (y) the 180th day following the date such agreement is entered intoexpiration of the aforementioned 365 day period. Pending the final application of any Net Proceeds, the Company (or any the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in clauses (1) through (4) of Section 4.10(c4.17(b) of this Indenture will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 US$25.0 million, within five thirty days thereofof exceeding such amount, the Company will make an offer (an “Asset Sale Offer”) ), to all Holders of the Notes and all holders of Notes and, at its option, all holders of Priority Debt, any Indebtedness secured by a Permitted Prior Lien and any other Indebtedness that is pari passu with Parity Debt (subject to proration in the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds event of sales of assets to purchase, prepay or redeem, on a pro rata basis, over subscription) the maximum principal amount of Notes and such Priority Debt or any Indebtedness secured by a Permitted Prior Lien and/or any other pari passu Indebtedness Parity Debt (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewiththerewith including any Additional Amounts) that may be purchased, prepaid or redeemed out of the Excess Proceeds. .
(d) The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to to, but not including, the date of purchase, prepayment or redemption, subject to the rights of Holders holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. .
(e) If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. .
(f) If the aggregate principal amount of Notes and any such Priority Debt, other Priority Obligations, any Indebtedness secured by a Permitted Prior Lien and/or any other Parity Debt Notes and such other Parity Debt tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select Excess Proceeds shall be allocated among the Notes and any such Priority Debt, other Priority Obligations, any Indebtedness secured by a Permitted Prior Lien and/or any other Parity Debt to be purchased purchased, prepaid or redeemed on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $US$2,000, or an integral multiple of $US$1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Greenfire Resources Ltd.)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a) the Company (or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture Issue Date is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed or novated by the transferee of any or that are otherwise cancelled, forgiven or terminated in connection with the transaction with such assets pursuant to a novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liabilitytransfer;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within 180 360 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e5), not to exceed an amount equal to the greater of $75.0 million and 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply an amount equal to such Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer the Company or a Guarantor that is subordinated in right of payment to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any The amount equal to the Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) will constitute “Excess Proceeds.” ”. When the aggregate amount of Excess Proceeds exceeds $20.0 50.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The Company may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds or equivalent amount prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”). The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interestinterest to, if anybut not including, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds (or in the case of an Advance Offer, Advance Portion) remain after notes are tendered in the consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds (or Advance Portion) for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by lawrequire), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company Trustee so that only Notes in minimum denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer (or Advance Offer), the amount of Excess Proceeds (or Advance Portion) will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer or Advance Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (HighPeak Energy, Inc.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(ai) the Company or any of its Restricted Subsidiaries (or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(bii) at least 7585% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary Subsidiaries (measured as of the date of the definitive agreement with respect to such Asset Sale) and all other Asset Sales since the date of this Indenture Issue Date is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are forgiven or assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 90 days of after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4C) any Capital Stock stock or assets of the kind referred to in clause (2Section 4.10(b)(ii) or (4iv) hereof;
(D) accounts receivable of Section 4.10(c)a business retained by the Company or any of its Restricted Subsidiaries, as the case may be, following the sale of such business, provided that such accounts receivable do not have a payment date greater than 90 days from the date of the invoices creating such accounts receivable and are not past due; and
(5E) Indebtedness (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or a Note Guarantee) of any Designated Non-cash Consideration received by Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale; provided that the Company or such and each other Restricted Subsidiary are released from any Guarantee of such Indebtedness in connection with such Asset Sale; provided that in the case of any Asset Sale pursuant to a condemnation, appropriation or similar taking, including by deed in lieu of condemnation, such Asset Sale having shall not be required to satisfy the requirements of Sections 4.10(a)(i) and 4.10(a)(ii) above. Notwithstanding the preceding, the 85% limitation referred to above shall be deemed satisfied with respect to any Asset Sale in which the cash or Cash Equivalents portions of the consideration received therefrom, determined in accordance with the preceding provision on an aggregate Fair Market Valueafter-tax basis, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount is equal to 5.0% of or greater than what the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of after-tax proceeds would have been had such Designated Non-cash Consideration), Asset Sale complied with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in valueaforementioned 85% limitation.
(cb) Within 360 180 days after the receipt of any Net Proceeds from an Asset Sale, other than a Sale of Collateral, the Company (or any one or more of its Restricted Subsidiary) Subsidiaries may at its option apply cash in an amount equal to the amount of such Net Proceeds at its option to any combination of the following:
(1i) to repayrepay (or cash collateralize) (A) Priority Lien Obligations and, repurchase (B) to the extent required by the documents governing such Indebtedness, Indebtedness permitted to be incurred pursuant to Section 4.09(b)(iv) hereof, provided that such Indebtedness was incurred for the purpose of financing all or redeem any Indebtedness part of the Company purchase price or a Restricted Subsidiary cost of the Companydesign, other than (i) Indebtedness construction, installation or improvement of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companysuch assets;
(2ii) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3iii) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Permitted Business, including investments in multi- client data libraries; or
(4iv) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause (2ii) or (4iv) of this Section 4.10(c4.10(b) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure investment referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Within 180 days after the receipt of any Net Proceeds from an Asset Sale that constitutes a Sale of Collateral, the Company (or the Restricted Subsidiary that owned those assets, as the case may be) may at its option apply cash in an amount equal to the amount of such Net Proceeds to any combination of the following: (1) to purchase or invest in other long-term assets that would constitute Collateral; (2) to repay (or cash collateralize) Priority Lien Obligations or (3) to make capital expenditures in the Permitted Business, including investments in multi-client data libraries in each case, comprising Collateral; provided, however, that the aggregate amount of Net Proceeds that may be applied or invested pursuant to clauses (1) through (3) above shall not exceed $25.0 million in the aggregate during any fiscal year.
(d) All of the Net Proceeds from an Asset Sale that constitutes a Sale of Collateral shall be deposited directly into the Collateral Account; provided, that the Company and the Restricted Subsidiaries will not be required to cause any Net Proceeds to be held in the Collateral Account except to the extent that the aggregate amount of Net Proceeds from all Asset Sales that constitute a Sale of Collateral which are not held in the Collateral Account exceeds $25.0 million in the aggregate during any fiscal year. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c4.10(b) hereof will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 1.0 million, the Company may (and when the Excess Proceeds exceeds $10.0 million shall), within five days thereof, to the Company will extent permitted by the Intercreditor Agreement and the Credit Agreement, each as in effect as of the Issue Date, make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes Second Lien Debt containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase, prepay or redeem, on a pro rata basis, redeem the maximum principal amount of Notes and such other pari passu Indebtedness Second Lien Debt (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale OfferOffer (or expiration of the offer if no Holder accepts), the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other Second Lien Debt tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee Company will select the Notes and such other Second Lien Debt to be purchased on a pro rata basis (except that any Notes represented by a Note note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,0001,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale OfferOffer (or expiration of the offer if no holder accepts), the amount of Excess Proceeds will be reset at zero. .
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Change of Control Offer or an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (I/O Marine Systems, Inc.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests or other assets issued or sold or otherwise disposed of; and
(b2) (a) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents(b) the Fair Market Value of all forms of consideration other than cash received for all Asset Sales since the Issue Date does not exceed in the aggregate 10% of the Adjusted Consolidated Net Tangible Assets of the Company at the time each determination is made. For purposes of this provision, each of the following will shall be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeSubordinated Obligations) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash within 180 days after the date of the Asset Sale, to the extent of the cash received in that conversion;
(4C) any Capital Stock stock or assets of the kind referred to in clauses (2) or (3) of the next paragraph of this Section 4.10; and
(D) accounts receivable of a business retained by the Company or any Restricted Subsidiary, as the case may be, following the sale of such business; provided that such accounts receivable are not (i) past due more than 90 days and (ii) do not have a payment date greater than 120 days from the date of the invoice creating such accounts receivable.
(b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, or, if the Company has entered into a binding commitment or commitments with respect to the actions described in clause (2) or (43) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Valuebelow, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 360 within 540 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option to any combination of the followingProceeds:
(1) (A) if the Asset Sale is a Collateral Disposition, to repay, prepay, redeem or repurchase Priority Lien Debt, Second Lien Debt and other outstanding Second Lien Obligations, the Notes and Third Lien Debt and other outstanding Third Lien Obligations; provided that with respect to Third Lien Debt, such repayment, prepayment, redemption or repurchase must be made either by a pro rata redemption or repayment of outstanding Third Lien Debt or by an offer to purchase on a pro rata basis made to all holders of Third Lien Obligations under the procedures set forth in Section 3.09 or (B) if such Asset Sale is not a Collateral Disposition, to repay, prepay, redeem any or repurchase Indebtedness of the Company or a another Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is not subordinated in right of payment to the Notes or the Note Guarantees(but, (ii) Capital Stock or (iii) in each case, excluding intercompany Indebtedness owed to an Affiliate of the CompanyCompany or any Restricted Subsidiary or any of its Affiliates);
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged invest in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the CompanyAdditional Assets;
(3) to make capital expenditures in respect of the Company’s or any its Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful any combination of the foregoing. Pending the application of any Net Proceeds in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investmentmanner provided above, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) Subsidiary may invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c4.10(b) will constitute “Excess Proceeds.” When Within five days after the date that the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes and (i) with respect to Excess Proceeds from any Asset Sale that is a Collateral Disposition, all holders of Priority Lien Obligations, Second Lien Obligations and other Third Lien Obligations; provided that to the extent that the terms of the Priority Lien Obligations or the Second Lien Obligations require that such Priority Lien Obligations or Second Lien Obligations, as applicable, be repaid with the Net Proceeds of Asset Sales prior to repayment of other Indebtedness (including the Notes), the Company and its Restricted Subsidiaries shall be entitled to repay such other Priority Lien Obligations and/or Second Lien Obligations prior to repaying the Obligations under the Notes, or (ii) with respect to other Excess Proceeds, all holders of other Indebtedness that is pari passu in right of payment with the Notes (with a copy to the Trustee) containing provisions similar to those set forth in this Section 4.10 Indenture (such applicable holders of any Third Lien Obligations or other applicable pari passu Indebtedness, the “Other Offer Parties”) with respect to offers to purchase, prepay repay or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase, prepay purchase or redeem, repay on a pro rata basis, basis the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid purchased or redeemed repaid out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interestinterest to, if anybut excluding, to the date of purchase, prepayment purchase or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment daterepayment, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to for the purchase of NotesNotes pursuant to the Asset Sale offer, the Trustee will shall select the Notes to be purchased on a pro rata basis (except that any or, in the case of Notes represented by a Note in global form Global Note, the Trustee will be selected select Notes for purchase by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchasedrequire). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(d) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.provisions of
Appears in 1 contract
Samples: Indenture (W&t Offshore Inc)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a) the Company (or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any of its Restricted Subsidiary where Subsidiaries, any agreement by the Company transferee (or such Restricted Subsidiary retains an interest in such property, Affiliate thereof) to pay all or a portion of the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;thereto; and
(3) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within 180 90 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the following:
(1) to repay, redeem or repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the CompanySenior Debt;
(2) to invest in or acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;Additional Assets; or
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or.
(4d) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (43) of Section 4.10(cthe preceding paragraph (c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company (or any of its Restricted Subsidiaries Subsidiary) with a Person other than an Affiliate of the Company within the time period specified in the such preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days six months following the date such agreement is entered into. .
(e) Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(f) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c5.10(c) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by lawappropriate), based on the principal amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(g) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 4.09 or this Section 4.105.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 4.09 or this Section 4.10 5.10 by virtue of such compliance.
Appears in 1 contract
Samples: First Supplemental Indenture (Vanguard Natural Resources, LLC)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) Subsidiary receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is determined by the Company's Board of Directors; and
(b3) except in the case of the sale, transfer or other disposition of the Company owned stores to franchisees in a business related to the optical business that results in the conversion of such stores to franchised stores, at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash cash, Cash Equivalents or Cash EquivalentsProductive Assets. For purposes of this provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s 's most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that areare contemporaneously, within 180 days of the Asset Salesubject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) . Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such those Net Proceeds at its option to any combination of the followingoption:
(1) to repay, repurchase repay Senior Debt or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated Company and to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companycorrespondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assetsassets of, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary majority of the CompanyVoting Stock of, another Permitted Business;
(3) to make a capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas expenditure relating to a Permitted Business; or
(4) to acquire other long-term assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) the second preceding paragraph will constitute “"Excess Proceeds.” " When the aggregate amount of Excess Proceeds exceeds $20.0 10.0 million, within five days thereof, the Company will (a) first, make an offer Excess Proceeds Offer (as defined in the 9 7/8% Notes Indenture) with respect to any outstanding 9 7/8% Notes, (b) second, make an “Excess Proceeds Offer (as defined in the 8 5/8% Notes Indenture) with respect to any outstanding 8 5/8% Notes, and (c) third, make an Asset Sale Offer”) Offer to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interestinterest and Liquidated Damages, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with principal amount of Notes and such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the provisions of Section 3.09 hereof or this Section 4.10 by virtue of such complianceconflict.
Appears in 1 contract
Samples: Indenture (Cole National Corp /De/)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the The Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(b2) except in the case of a Permitted Asset Swap, at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash within 120 days after such Asset Sale, to the extent of the cash received in that conversion;; and
(4C) any Capital Stock stock or assets of the kind referred to in clause clauses (23) or (45) of paragraph (b) of this Section 4.10(c)4.10; and
(53) any Designated Non-cash Consideration received by subject to certain limitations, after the Refinancing Date in the case of an Asset Sale that constitutes a Sale of Collateral, the Company (or such the applicable Restricted Subsidiary Subsidiary, as the case may be) promptly deposits the Net Proceeds therefrom immediately upon receipt thereof as Collateral in such Asset Sale having an aggregate Fair Market Valueaccount or accounts (each, taken together with all other Designated Non-cash Consideration received pursuant to this clause a “Collateral Proceeds Account”) held by or under the control of (e), not to exceed an amount equal to 5.0% for purposes of the Company’s Adjusted Consolidated Net Tangible Assets (determined at Uniform Commercial Code) or otherwise subject to a perfected security interest in favor of the time of receipt of such Designated Non-cash Consideration)applicable Collateral Trustee or its agent to secure, with to the Fair Market Value of each item of Designated Non-cash Consideration being measured at extent the time received Collateral sold was U.S. Collateral, all U.S. Secured Obligations, and without giving effect to subsequent changes in valuethe extent the Collateral Sold was Canadian Collateral, all Canadian Secured Obligations.
(cb) Within 360 365 days after the receipt of any Net Proceeds from an Asset SaleSale other than a Sale of Collateral, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds Proceeds, at its option to any combination of the followingoption:
(1) to repay, repurchase or redeem any Indebtedness of Priority Lien Obligations, if the Company or a Restricted Subsidiary of the CompanyPriority Lien Obligations repaid are revolving credit Indebtedness, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companycorrespondingly reduce commitments with respect thereto;
(2) to repay, repurchase or redeem Parity Lien Obligations; provided, that the Issuers offer to repay, repurchase or redeem the Notes on a pro rata basis;
(3) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged another Permitted Business (provided that in the Oil and Gas Business, if, after giving effect to case of any such acquisition of Capital Stock, such Person after giving effect thereto, the Permitted Business is or becomes a Restricted Subsidiary of the Company);
(34) to repay Indebtedness (other than Secured Obligations) that is secured by a Permitted Lien on any assets that were sold in such Asset Sale;
(5) to make a capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; orexpenditure;
(46) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business;
(7) in the Oil and Gas Business. The requirement case of clause an Asset Sale (other than a sale of an asset that had constituted Collateral at any time since the date of this Indenture) by a Restricted Subsidiary that is not a Guarantor, to repay, repurchase or redeem Indebtedness of the Company or any Restricted Subsidiary that is not contractually subordinated in right of payment to the Notes; or
(8) any combination of the foregoing clauses (1) through (7).
(c) Within 365 days after the receipt of any Net Proceeds from a Sale of Collateral, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds, at its option:
(1) to purchase other assets that would constitute Collateral;
(2) to acquire all or substantially all of the assets of, or any Capital Stock of, a Permitted Business (provided that in the case of any such acquisition of Capital Stock, after giving effect thereto, the Permitted Business becomes a Guarantor or is merged into or consolidated with an Issuer or any Guarantor);
(3) to repay Indebtedness (other than Secured Obligations) that is secured by a Permitted Priority Lien on any Collateral that was sold in such Asset Sale;
(4) to make a capital expenditure with respect to assets that constitute Collateral;
(5) any combination of the foregoing clauses (1) through (4).
(d) In the case of clauses (3), (5) and (6) of paragraph (b) of this Section 4.10 and clauses (1), (2) and (4) of paragraph (c) of this Section 4.10(c4.10, the Company (or the applicable Restricted Subsidiary, as the case may be) shall will be deemed to be satisfied have complied with its obligations in paragraphs (a), (b) and (c) of this Section 4.10 if it enters into a bona fide binding contract committing commitment to make acquire such assets or Capital Stock prior to 360 days after the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate receipt of the Company within the time period specified in the preceding paragraph applicable Net Proceeds; provided that such binding commitment will be subject only to customary conditions and such Net Proceeds are subsequently applied in accordance with such contract acquisition is completed within 180 days following the date expiration of the aforementioned 360 day period. If the acquisition contemplated by such agreement binding commitment is entered into. not consummated on or before such 180th day, and the Company (or the applicable Restricted Subsidiary, as the case may be) has not applied the applicable Net Proceeds for another purpose permitted by the applicable paragraph (a), (b) or (c) of this Section 4.10 on or before such 180th day, such commitment shall be deemed not to have been a permitted application of Net Proceeds.
(e) Pending the final application of any Net ProceedsProceeds of an Asset Sale, other than a Sale of Collateral, the Company (or any the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(f) Any Net Proceeds from Asset Sales that are not applied or invested as provided in paragraph (b) or (c) of this Section 4.10(c) will 4.10 constitute “Excess Proceeds.” ”
(g) When the aggregate amount of Excess Proceeds exceeds $20.0 15.0 million, within forty-five (45) days thereof, the Company Issuers will make an a joint offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes Parity Lien Debt containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets in accordance with Section 3.08 hereof to purchase, prepay or redeem, on a pro rata basis, redeem the maximum principal amount of Notes as Units and such other pari passu Indebtedness Parity Lien Debt (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, interest to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes as Units and Parity Lien Debt tendered into (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee trustee will select the Notes as Units and such other Parity Lien Debt to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law)basis, based on the amounts tendered (with such adjustments as may or required to be deemed appropriate by the Company so that only Notes in denominations of $2,000, prepaid or an integral multiple of $1,000 in excess thereof, will be purchased)redeemed. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Change of Control Offer or an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control or Asset Sale provisions of this Section 3.09 3.08 hereof or this Section 4.10, the Company Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 3.08 hereof or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the The Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and;
(b2) except in the case of a Permitted Asset Swap, at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. ; For purposes of this provisionSection 4.10(a)(2), each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2B) with respect to any Asset Sale Indebtedness of oil and natural gas properties by the Company or any Restricted Subsidiary where that is no longer a Restricted Subsidiary as a result of such Asset Sale, to the extent that the Company or such and its Restricted Subsidiary retains an interest in such property, the costs and expenses Subsidiaries are released from any guarantee of payment of the Company or such Restricted Subsidiary related to the exploration, development, completion or production principal amount of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to payIndebtedness in connection with such Asset Sale;
(3C) any securities, notes Notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash within one hundred twenty (120) days after such Asset Sale, to the extent of the cash received in that conversion;; and
(4D) any Capital Stock stock or assets of the kind referred to in clause (23), (5) or (46) of paragraph (b) of this Section 4.10(c)4.10; and
(53) any Designated Non-cash Consideration received by subject to certain limitations, in the case of an Asset Sale that constitutes a Sale of Collateral, the Company (or such the applicable Restricted Subsidiary Subsidiary, as the case may be) promptly deposits the Net Proceeds therefrom promptly upon receipt thereof as Collateral in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause account or accounts held by or under the control of (e), not to exceed an amount equal to 5.0% for purposes of the Company’s Adjusted Consolidated Net Tangible Assets (determined at Uniform Commercial Code) or otherwise subject to a perfected security interest in favor of the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect Collateral Trustee or its agent to subsequent changes in valuesecure all Secured Obligations.
(cb) Within 360 three hundred sixty-five (365) days after the receipt of any Net Proceeds from an Asset SaleSale other than a Sale of Collateral, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds Proceeds, at its option to any combination of the followingoption:
(1) to repay, repurchase or redeem any Indebtedness of Priority Lien Obligations and, if the Company or a Restricted Subsidiary of the CompanyPriority Lien Obligations repaid are revolving credit Indebtedness, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companycorrespondingly reduce commitments with respect thereto;
(2) to repay, repurchase or redeem Parity Lien Obligations; provided, that the Issuer offers to repay, repurchase or redeem the Notes on a pro rata basis;
(3) to acquire all or substantially all of the assetsassets of, or any Capital StockEquity Interests of, of one or more other Persons primarily engaged a Permitted Business (provided that in the Oil and Gas Business, ifcase of any such acquisition of Equity Interests, after giving effect to any such acquisition of Capital Stockthereto, such Person the Permitted Business is or becomes a Restricted Subsidiary of the Company);
(34) to repay (A) Indebtedness (other than Secured Obligations) that is secured by a Permitted Lien on any assets that were sold in such Asset Sale, or (B) obligations under the 13% Notes;
(5) to make a capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; orexpenditure;
(46) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business;
(7) in the Oil and Gas Business. The requirement case of clause an Asset Sale by a Restricted Subsidiary that is not a Guarantor, to repay, repurchase or redeem Indebtedness of the Company, the Issuer or any Restricted Subsidiary; or
(8) any combination of the foregoing clauses (1) through (7).
(c) Within three hundred sixty-five (365) days after the receipt of any Net Proceeds from a Sale of Collateral, the Company (or the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds, at its option:
(1) to purchase other assets that would constitute Collateral;
(2) to acquire all or substantially all of the assets of, or any Equity Interests of, a Permitted Business (provided that in the case of any such acquisition of Equity Interests, after giving effect thereto, the Permitted Business becomes a Guarantor or is merged into or consolidated with the Issuer or any Guarantor);
(3) to repay (A) Indebtedness (other than Secured Obligations) that is secured by a Permitted Priority Lien on any Collateral that was sold in such Sale of Collateral, or (B) obligations under the 13% Notes;
(4) to make a capital expenditure with respect to assets that constitute Collateral; or
(5) any combination of the foregoing clauses (1) through (4).
(d) In the case of clauses (3), (5) and (6) of paragraph (b) of this Section 4.10 and clauses (1), (2) and (4) of paragraph (c) of this Section 4.10(c4.10, the Company (or the applicable Restricted Subsidiary, as the case may be) will be deemed to have complied with its obligations in paragraphs (b) and (c) of this Section 4.10 if it enters into a binding commitment to acquire such assets or Equity Interests prior to three hundred sixty-five (365) days after the receipt of the applicable Net Proceeds; provided that such binding commitment will be subject only to customary conditions and such acquisition is completed within one hundred eighty (180) days following the expiration of the aforementioned three hundred sixty-five (365) day period. If the acquisition contemplated by such binding commitment is not consummated on or before such one hundred eightieth (180th) day, and the Company (or the applicable Restricted Subsidiary, as the case may be) has not applied the applicable Net Proceeds for another purpose permitted by the applicable paragraph (b) or (c) of this Section 4.10 on or before such one hundred eightieth (180th) day, such commitment shall be deemed not to be satisfied if have been a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any permitted application of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Proceeds.
(e) Pending the final application of any Net ProceedsProceeds of an Asset Sale, other than a Sale of Collateral, the Company (or any the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(f) Any Net Proceeds from Asset Sales that are not applied or invested as provided in paragraph (b) (with respect to Asset Sales other than Sales of Collateral) or paragraph (c) (with respect to a Sale of Collateral) of this Section 4.10(c) will 4.10 constitute “Excess Proceeds”.”
(g) When the aggregate amount of Excess Proceeds exceeds $20.0 15.0 million, within forty-five (45) days thereof, the Company Issuer will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes Parity Lien Debt containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets assets, in accordance with Section 3.08 hereof, to purchase, prepay or redeem, on a pro rata basis, redeem the maximum principal amount of Notes and such other pari passu Indebtedness Parity Lien Debt (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, interest to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other Parity Lien Debt tendered into (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will shall select the Notes and such other Parity Lien Debt to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law)basis, based on the amounts validly tendered (with such adjustments as may and not validly withdrawn) or required to be deemed appropriate by the Company so that only Notes in denominations of $2,000, prepaid or an integral multiple of $1,000 in excess thereof, will be purchased)redeemed. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(h) The Company Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of Section 3.09 3.08 hereof or this Section 4.10, the Company Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 3.08 hereof or this Section 4.10 by virtue of such compliance.”
Appears in 1 contract
Samples: Supplemental Indenture and Amendment to Collateral Agreement (Primus Telecommunications Group Inc)
Asset Sales. The Company (a) Xxxxxxx will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company Xxxxxxx (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets assets, rights or Equity Interests of a Subsidiary of Xxxxxxx issued or sold or otherwise disposed of;
(2) the Fair Market Value is set forth in an Officers’ Certificate delivered to the Trustee; and
(b3) at least 75% of the aggregate consideration received in the Asset Sale by the Company Xxxxxxx or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash EquivalentsPermitted Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the CompanyXxxxxxx’x or such Restricted Subsidiary’s most recent consolidated balance sheet, of the Company Xxxxxxx or any Restricted Subsidiary (other than contingent liabilities and liabilities, liabilities that are by their terms subordinated to the Notes or any Note GuaranteeGuarantee and liabilities to the extent owed to Xxxxxxx or any Restricted Subsidiary of Xxxxxxx) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company Xxxxxxx or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company Xxxxxxx or any such Restricted Subsidiary from such transferee that areare contemporaneously, within 180 days of the Asset Salesubject to ordinary settlement periods, converted by the Company Xxxxxxx or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, Xxxxxxx or the Company (or any applicable Restricted Subsidiary) Subsidiary may apply such those Net Proceeds at its option to any combination of the followingProceeds:
(1) to repayrepay or prepay secured Indebtedness or the Mandatory Convertible Notes, repurchase and Obligations in respect thereof, of Xxxxxxx or redeem any Indebtedness of the Company or a Restricted Subsidiary of the CompanyXxxxxxx, including secured Indebtedness and Obligations under any Credit Facility, other than (i) Indebtedness of an Issuer or a Guarantor other Obligations that is are subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the CompanyNotes;
(2) to acquire all or substantially all of the assetsassets of, or stock of, another Oil and Gas Business (or enter into a legally binding agreement to purchase such assets or stock) within 90 days after the date of such binding agreement; provided, however, that if any Capital Stocksuch legally binding agreement to invest such Net Proceeds is terminated, then Xxxxxxx or the applicable Restricted Subsidiary may within 30 days of one such termination or more other Persons primarily engaged 365 days after the receipt of any Net Proceeds from the applicable Asset Sale, whichever is later, invest such Net Proceeds as provided in the clause (1), (3) or (4) of this paragraph (b) or to acquire assets or stock of another Oil and Gas Business; provided, iffurther, after giving effect that, if the Net Proceeds are not so applied within that time period, they will immediately be deemed to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Companybe Excess Proceeds (as defined below);
(3) to make a capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Businessexpenditure; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered intoPermitted Assets. Pending the final application of any Net Proceeds, the Company (Xxxxxxx or any such Restricted Subsidiary) Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in paragraph (b) of this Section 4.10(c) 4.10 will constitute “Excess Proceeds.” ”. When the aggregate amount of Excess Proceeds exceeds $US$20.0 million, within five days thereof, the Company Issuer will make an offer (an “Asset Sale Offer”) to all Holders (excluding Compton or any of the Notes its Restricted Subsidiaries) and all holders (excluding Xxxxxxx or any of its Restricted Subsidiaries) of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company Xxxxxxx or any of its Restricted Subsidiary Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will will, subject to Section 4.10(f) hereof, select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company Trustee so that only Notes in denominations of $2,000US$1,000, or an integral multiple of $1,000 in excess multiples thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
(d) The Asset Sale Offer will remain open for a period of at least 20 Business Days and not more than 30 Business Days (except to the extent that a longer period is required by applicable law) following its commencement (the “Offer Period”).
(e) Within three Business Days after it becomes obligated to make the Asset Sale Offer, the Issuer will commence the Asset Sale Offer by sending a notice by first class mail to each Holder, at such Holder’s registered address, with a copy to the Trustee. The Company notice shall (i) contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer and (ii) be accompanied by such information regarding Xxxxxxx and its Restricted Subsidiaries as the Issuer in good faith believes will enable Holders to make an informed decision with respect to such Asset Sale Offer. Without limiting the foregoing, the notice, which will govern the terms of the Asset Sale Offer, will state:
(1) that the Asset Sale Offer is being made pursuant to this Section 4.10 and the length of time the Asset Sale Offer will remain open;
(2) the amount of Excess Proceeds, the Offer Amount (as defined below), the purchase price and the Purchase Date (as defined below);
(3) that any Note (or portion thereof) not tendered or accepted for payment will continue to accrue interest;
(4) that, unless the Issuer defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;
(5) that a Holder electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of US$1,000 only;
(6) that a Holder electing to have a Note purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note completed, or transfer the Note by book-entry transfer, to the Issuer, a Depositary, if appointed by the Issuer, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
(7) that a Holder will be entitled to withdraw his election if the Issuer, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a 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;
(8) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by Holders exceeds the Excess Proceeds, the Trustee will, subject to Section 4.10(f) hereof, select the Notes to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of US$1,000, or integral multiples thereof, will be purchased); and
(9) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).
(f) No Note in principal amount of US$1,000 or less can be purchased in part; except that if all of the Notes of a Holder are to be purchased pursuant to an Asset Sale Offer, the entire outstanding amount of Notes held by such Holder, even if not a multiple of US$1,000, shall be purchased.
(g) One Business Day prior to the end of the Offer Period (the last day of the Offer Period being herein called the “Purchase Date”), the Issuer will deposit with the Trustee or with the Paying Agent money sufficient to pay the purchase price of all Notes to be purchased on that Purchase Date, including accrued and unpaid interest on such Notes (the amount required to purchase such Notes and other pari passu Indebtedness being referred to herein as the “Offer Amount”). The Trustee or the Paying Agent will promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the purchase price of, and accrued and unpaid interest on, all Notes to be purchased.
(h) On a date that is no later than three Business Days after the Purchase Date, the Issuer will, to the extent lawful:
(1) accept for payment, on a pro rata basis to the extent necessary, all Notes (or any portions thereof) and other pari passu Indebtedness, in each case to the extent tendered pursuant to the Asset Sale Offer and required to be purchased by the Issuer pursuant to this Section 4.10; and
(2) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers’ Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Issuer and that such Notes were accepted for payment by the Issuer in accordance with the terms of this Section 4.10.
(i) The Issuer, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than three Business Days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Issuer for purchase, and the Issuer will promptly issue a new Note, and the Trustee, upon written request from the Issuer will authenticate at the expense of the Issuer and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered; provided, however, that each such Note shall be in a principal amount of US$1,000 or an integral multiple thereof. Any Note not so accepted shall be promptly mailed or delivered by or on behalf of the Issuer to the Holder thereof. The Issuer will publicly announce the results of the Asset Sale Offer on the Business Day following the Purchase Date.
(j) If an interest payment date is on or prior to the applicable Purchase Date, the accrued interest payable on such interest payment date shall be paid on such interest payment date to the Person in whose name the Note is registered at the close of business on the relevant interest payment record date.
(k) For purposes of this Section 4.10, the Issuer will be required to comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the provisions of this Section 4.10, the Company Issuer will be required to comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 such provisions by virtue of such complianceconflict.
Appears in 1 contract
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) no Default or Event of Default has occurred and is continuing or would occur at the time of or after giving pro forma effect to such Asset Sale;
(2) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b3) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations Obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents with 180 days after consummation of such Asset Sale, to the extent of the cash and Cash Equivalents received in that conversion;; and
(4C) any Capital Stock stock or assets of the kind referred to in clause clauses (2) or (4) of the next paragraph of this Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) 4.10. Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may must apply such Net Proceeds at its option to any combination of the followingProceeds:
(1) to prepay, repay, repurchase redeem or redeem purchase (and reduce the commitments under) any senior secured Indebtedness, including Indebtedness of under the Company or a Restricted Subsidiary of Bank Credit Facility, and, if the CompanyIndebtedness repaid is revolving credit Indebtedness, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companycorrespondingly permanently reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Businessexpenditure; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; provided, however, that if the Oil and Gas Business. The requirement Company or any Restricted Subsidiary contractually commits within such 360-day period to apply such Net Proceeds within 180 days of such contractual commitment in accordance with clause (2), (3) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investmentabove, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied as contemplated in accordance with such contract within 180 days following contractual commitment, then the date such agreement is entered intorequirement for application of Net Proceeds set forth in this paragraph shall be considered satisfied. Pending the final application of any Net Proceeds, the Company (or any the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this Section 4.10(c) 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, redeem the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interestinterest and Special Interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law)basis, based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Asset Sales. The Company Parent will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a) the Company Parent (or a Restricted SubsidiarySubsidiary of the Parent, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b) at least 75% of the aggregate consideration received by the Parent and its Restricted Subsidiaries in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the CompanyParent’s or any of its Restricted Subsidiaries’ most recent consolidated balance sheet, of the Company Parent or any Restricted such Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a novation or indemnity agreement that releases the Company Parent or such Restricted Subsidiary from from, or indemnifies the Company or such Restricted Subsidiary against it against, further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company Parent or any of its Restricted Subsidiary where Subsidiaries, any agreement by the Company transferee (or such Restricted Subsidiary retains an interest in such property, Affiliate thereof) to pay all or a portion of the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;thereto; and
(3) any securities, notes or other obligations received by the Company Parent or any of its Restricted Subsidiary Subsidiaries from such transferee that are, within 180 120 days of after the Asset Sale, converted by the Company Parent or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (Parent or any Restricted Subsidiary) Subsidiary of the Parent may apply such Net Proceeds at its option to any combination of the following:
(1) to repay, redeem or repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the CompanySenior Debt;
(2) to invest in or acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;Additional Assets; or
(3) to make capital expenditures in respect of the CompanyParent’s or any its Restricted Subsidiaries’ Oil and Gas Business; or.
(4d) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (43) of Section 4.10(cthe preceding paragraph (c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company Parent (or any Restricted Subsidiary of its Restricted Subsidiaries the Parent) with a Person other than an Affiliate of the Company Parent within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days the later of six months following the date such agreement contract is entered into. into and 360 days after the receipt of any Net Proceeds from such Asset Sale.
(e) Pending the final application of any Net Proceeds, the Company (Parent or any of its Restricted Subsidiary) Subsidiaries may invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(f) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) or (d) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days ten Business Days thereof, the Company Parent will make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets assets, offering to purchase, prepay purchase or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Pari Passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid purchased or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interestinterest and Additional Interest, if any, to to, but not including, the date of purchase, prepayment purchase or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant an interest payment datedate that is on or prior to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company Parent or any Restricted Subsidiary of the Parent may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered accepted for payment in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor the Depository may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered require) (with such adjustments as may be deemed appropriate by the Company subject to adjustment so that only Notes no Note in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchasedunauthorized denomination remains outstanding after repurchase). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(g) The Company Parent will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company Parent will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Legacy Reserves Inc.)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an any Asset Sale unless:
(a1) the Company (or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value fair market value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received by the Company and its Restricted Subsidiaries in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales on a cumulative basis since the date of this Indenture Issue Date is in the form of cash or cash, Cash Equivalents, Additional Assets or any combination thereof (collectively, “Cash Consideration”). For purposes of this provision, each of the following will be deemed to be cashCash Consideration:
(1a) any liabilities, liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent consolidated balance sheet or in the notes thereto or, if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Company’s or a Restricted Subsidiary’s consolidated balance sheet or in the notes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any Note GuaranteeGuarantor’s Guarantee of the Notes) that are (i) assumed by the transferee of any such assets pursuant (or a third party in connection with such transfer) or (ii) otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to a novation or indemnity agreement that releases the Company or such a Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liabilitySubsidiary);
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3b) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within 180 days after the consummation of the such Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5c) any Designated Non-cash Cash Consideration received by the Company or such any Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Valuefair market value, taken together with all other Designated Non-cash Cash Consideration received pursuant to this clause (ec), not to exceed an amount equal to 5.0the greater of (i) US$75.0 million or (ii) 3.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Cash Consideration), with the Fair Market Value fair market value of each item of Designated Non-cash Cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) . Within 360 365 days after the receipt of any Net Proceeds from an Asset SaleSale (such period the “Asset Sale Proceeds Application Period”), the Company (or any of its Restricted Subsidiary) Subsidiaries may apply such an amount equal to those Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase redeem, purchase, defease or redeem otherwise acquire, retire or terminate:
(a) Priority Debt and other outstanding Priority Obligations or any Indebtedness of secured by a Permitted Prior Lien; or
(b) to permanently repay, redeem or repurchase Parity Debt, other than Indebtedness owed to the Company or a any Restricted Subsidiary of Subsidiary; provided that if the Company shall so repay or reduce any such Parity Debt, the Company shall equally and ratably repay (or offer to repay) the Notes as provided either, at the Company’s option, other than (i) Indebtedness of under Article 3, through open-market purchases at par or by making an Issuer or a Guarantor that is subordinated offer in accordance with the procedures set forth below for an Asset Sale Offer to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed all Holders to an Affiliate of the Companypurchase their Notes;
(2) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes (or the relevant assets are acquired by) a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Businessacquire Additional Assets; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used make Capital Expenditures in respect of any Permitted Business of the Company or useful in the Oil and Gas Businessany of its Restricted Subsidiaries. The requirement of clause clauses (2) or through (4) of the preceding paragraph of this Section 4.10(c) 4.10 shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries Subsidiary, as the case may be, with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days six months following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any of its Restricted Subsidiary) Subsidiaries may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not To the extent the amount applied or invested as provided in the second paragraph of this Section 4.10(c) 4.10 is less than the amount of the Net Proceeds, the amount that is not so applied will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 US$35.0 million, within five 30 days thereof, thereafter the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and and, at its option, all holders of Priority Debt, any Indebtedness secured by a Permitted Prior Lien and any other Indebtedness that is pari passu with Parity Debt (subject to proration in the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds event of sales of assets to purchase, prepay or redeem, on a pro rata basis, over subscription) the maximum principal amount of Notes and such Priority Debt or any Indebtedness secured by a Permitted Prior Lien and/or any other pari passu Indebtedness Parity Debt (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewiththerewith including any Additional Amounts) that may be purchased, prepaid purchased or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100100.0% of the principal amount, amount thereof plus accrued and unpaid interest, if any, to to, but not including, the date of purchase, prepayment or redemptionsettlement, subject to the rights right of Holders of the Notes record on the relevant record date Record Date to receive interest due on an Interest Payment Date that is on or prior to the relevant interest payment datedate of settlement, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any of its Restricted Subsidiary Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other Priority Debt, any Indebtedness secured by a Permitted Prior Lien and/or any other Parity Debt tendered into (or to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee Excess Proceeds will select be allocated among the Notes and any such Priority Debt, other Priority Obligations, any Indebtedness secured by a Permitted Prior Lien and/or any other Parity Debt to be purchased purchased, prepaid or redeemed on a pro rata basis (except that basis. The Company may satisfy the foregoing obligation with respect to any Notes represented Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to the amount of all or part of the available Net Proceeds prior to the expiration of the Asset Sale Proceeds Application Period with respect to the amount of all or a Note part of the available Net Proceeds in global form will be selected advance of being required to do so by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)this Indenture. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. Notwithstanding the foregoing clauses (1) – (4) of the second paragraph of this Section 4.10, to the extent that repatriating any or all of the Cash Consideration from any Asset Sale by a Foreign Subsidiary (x) would result in material adverse tax consequences to the Company or any of its Subsidiaries or (y) is prohibited or delayed by applicable local law from being repatriated to the United States or Canada (in the case of the foregoing clauses (x) and (y), as reasonably determined by the Company in good faith which determination shall be conclusive), the portion of such Cash Consideration so affected will not be required to be applied in compliance with clauses (1) – (4) of the second paragraph of this Section 4.10, and such amounts may be retained by the applicable Foreign Subsidiary; provided that, in the case of this clause (y), the Company shall take commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all actions reasonably required by the applicable local law, applicable organizational impediments or other impediment to permit such repatriation, and, if such repatriation of any of such affected Cash Consideration can be achieved such repatriation will be promptly effected and such repatriated Cash Consideration will be applied (whether or not repatriation actually occurs) in compliance with clauses (1) – (4) of the second paragraph of this Section 4.10. The time periods set forth in this Section 4.10 with respect to an Asset Sale by a Foreign Subsidiary shall not start until such time as the Cash Consideration may be repatriated whether or not such repatriation actually occurs. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Enerflex Ltd.)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that areare contemporaneously, within 180 days of the Asset Salesubject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;; and
(4c) any Capital Stock stock or assets of the kind referred to in clause clauses (2) or (4) of the next paragraph of this Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) 4.10. Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option to any combination of the followingProceeds:
(1) to prepay, repay, purchase, repurchase or redeem any senior secured Indebtedness of the Company or a any Restricted Subsidiary of the Company, Company (other than (i) intercompany Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an any Affiliate of or the Company); provided, however, that, in connection with any prepayment, repayment, redemption or purchase of Indebtedness pursuant to this clause (1), the Company or such Restricted Subsidiary will cause the related commitment to be permanently reduced in an amount equal to the principal amount so prepaid, repaid, redeemed or purchased;
(2) to acquire all or substantially all of the assetsproperties or assets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and & Gas Business, if, after giving effect to any such acquisition of Capital Stock, such the Person is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Businessexpenditure; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this Section 4.10(c) 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five 30 days thereofthereafter, the Company will make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase, prepay or redeem, on a pro rata basis, redeem the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interestinterest and Special Interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law)basis, based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Change of Control Offer or an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the provisions of Section 3.09 hereof or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Energy Partners LTD)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale Sale, unless:
(a1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) at least equal to the fair market value (measured at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration for such Asset Sale, together with all other Asset Sales since the Prior Issue Date (on a cumulative basis), received by the Company or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture , is in the form of cash or Cash Equivalents. For purposes of this provision, ; provided that each of the following will be deemed to be cash:cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(1A) any liabilities, liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent consolidated balance sheet or in the notes thereto or, if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Company’s or a Restricted Subsidiary’s consolidated balance sheet or in the notes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or any Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any Note Guarantee) Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets pursuant (or a third party in connection with such transfer) or (ii) otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to a novation or indemnity agreement that releases the Company or such a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or indemnifies in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or such a Restricted Subsidiary against further liabilityinto cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(2C) any Designated Non-Cash Consideration received by the Company or a Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non- Cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (i) $50.0 million and (ii) 5% of Adjusted Consolidated Net Tangible Assets of the Company at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value;
(D) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or a Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale;
(E) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 4.10(b)(2); and
(F) with respect to any Asset Sale of oil Oil and natural gas properties Gas Properties disposed of by the Company or any Restricted Subsidiary where in which the Company or such any Restricted Subsidiary retains an interest in such propertyinterest, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties Oil and Gas Properties and activities related thereto which agreed to be assumed by the transferee (or an Affiliate thereof) agrees to pay;
(3) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 365 days after the receipt of any Net Proceeds from an of any Asset SaleSale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company (or any a Restricted Subsidiary) , at its option, may apply such an amount equal to the Net Proceeds at its option to any combination of the followingfrom such Asset Sale:
(1) to repay, repurchase redeem or redeem any repurchase:
(A) Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect of Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Obligations owed to the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;Subsidiary; or
(2) to acquire all or substantially all of the assets, or make (a) an Investment in any Capital Stock, of one or more other Persons primarily engaged businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Company or any Restricted Subsidiary owning an amount of the Capital Stock of such business such that it constitutes or continues to constitute a Restricted Subsidiary, (b) capital expenditures, (c) other expenditures made with respect to Oil and Gas BusinessProperties, if, after giving effect to (d) acquisitions by the Company or any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company;
(3) to make capital expenditures in respect of the Company’s Company or any Restricted Subsidiaries’ Oil Subsidiary of other assets, other than securities, in the case of clauses (a),(d) and Gas Business; or
this clause (4e), either (i) to acquire other assets that are not classified as current assets under GAAP and that are or will be used or useful in the Oil and Gas Business. The requirement Business or (ii) that replace, in whole or in part, the properties or assets that are the subject of such Asset Sale; provided that in the case of this clause (2) or (4) ), a binding commitment will be treated as a permitted application of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by Net Proceeds from the date of such commitment so long as the Company or a Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Net Proceeds); provided, further, that if any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such commitment is later cancelled or terminated for any reason before such Net Proceeds are subsequently applied in accordance with applied, then such contract within 180 days following Net Proceeds will constitute Excess Proceeds (as defined below); or
(3) any combination of the date such agreement is entered into. foregoing.
(c) Pending the final application of the amount of any Net ProceedsProceeds pursuant to this covenant, the Company (Issuers and their Restricted Subsidiaries may temporarily reduce Indebtedness, or any Restricted Subsidiary) may invest the otherwise use such Net Proceeds in any manner that is not prohibited by this the Indenture. Any .
(d) The amount equal to the Net Proceeds from Asset Sales that are not invested or applied or invested as provided and within the time period set forth in Section 4.10(c4.10(b) will be deemed to constitute “Excess Proceeds.” ”. When the aggregate amount of Excess Proceeds exceeds $20.0 50.0 million, within five days thereof, the Company Issuers will make an offer (an “Asset Sale Offer”) to all Holders and, at the option of the Notes and all Issuers, to any holders of other any Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes (“Pari Passu Indebtedness” and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expensesoffer, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an “Asset Sale Offer”), to purchase the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the maximum aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes and such Pari Passu Indebtedness that is in an amount equal to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of at least $2,000, or an integral multiple of $1,000 in excess of $2,000, that may be purchased out of the Excess Proceeds at an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, will if less), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other price, if any, as may be purchasedprovided for by the terms of such Pari Passu Indebtedness), to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures set forth in Section 3.09 (or, in respect of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). Upon completion of each The Issuers will commence an Asset Sale Offer, Offer with respect to Excess Proceeds within 30 days after the date that the amount of Excess Proceeds exceeds $50.0 million by mailing or electronically delivering the notice required pursuant to Section 3.09, with a copy to the Trustee, or otherwise in accordance with Applicable Procedures. The Issuers may satisfy the foregoing obligation with respect to any Net Proceeds from an Asset Sale by making an offer to purchase Notes with respect to the amount of all or part of the available Net Proceeds (the “Advance Portion”) prior to the expiration of the Asset Sale Proceeds Application Period with respect to the amount of all or a part of the available Net Proceeds in advance of being required to do so by this Indenture (the “Advance Offer”). To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds (or in the case of an Advance Offer, the Advance Portion), the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in any manner not prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the Pari Passu Indebtedness surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance Offer, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will select the Notes to be purchased in the manner described under Section 3.02 and the Issuers will select such Pari Passu Indebtedness to be purchased pursuant to the terms of such Pari Passu Indebtedness; provided that as between the Notes and any Pari Passu Indebtedness, such purchases will be made on a pro rata basis based on the accreted value or principal amount of the Notes or such Pari Passu Indebtedness tendered with adjustments as necessary so that no Notes or Pari Passu Indebtedness will be repurchased in part in an unauthorized denomination. Upon completion of any such Asset Sale Offer, for purposes of this provision the amount of Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) that resulted in the Asset Sale Offer or Advance Offer will be reset to zero (regardless of whether there are any remaining Excess Proceeds (or Advance Portion) upon such completion). An Asset Sale Offer or Advance Offer may be made at zero. the same time as consents are solicited with respect to an amendment, supplement or waiver of this Indenture, Notes and/or Guarantees (but the Asset Sale Offer or Advance Offer may not condition tenders on the delivery of such consents).
(e) [Reserved].
(f) The Company Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and or regulations are applicable in connection with each the repurchase of the Notes pursuant to an Asset Sale Offer or Advance Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the provisions of this Section 4.10Indenture, the Company Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or described in this Indenture by virtue thereof.
(g) The Issuers’ obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 by virtue may be waived or modified with the written consent of such compliancethe Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Samples: Indenture (Vine Energy Inc.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
(a1) the Company (Company, or a the Restricted Subsidiary, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Company’s Board of Directors and evidenced by a Board Resolution set forth in an Officers’ Certificate delivered to the Trustee; and
(b3) at least 75% of the aggregate consideration received in the such Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provisionclause (3), each of the following will shall be deemed to be cash:
(1i) any Indebtedness or other liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities Indebtedness that are by their terms pari passu with or subordinated to the Notes or any Note Guarantee) Subsidiary Guarantee and liabilities to the extent owed to the Company or any Affiliate of the Company), that are assumed by the transferee of any such assets pursuant to a novation or indemnity written agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) liability with respect to any Asset Sale of oil and natural gas properties by the Company such Indebtedness or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;liabilities; and
(3ii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, are converted within 180 60 days of the applicable Asset Sale, converted Sale by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that such conversion;.
(4b) Notwithstanding the terms of paragraph (a) above, the Company and the Restricted Subsidiaries may engage in Asset Swaps if (i) immediately after giving effect to any Capital Stock or assets such Asset Swap, the Company would be permitted to Incur at least US$1.00 of additional Indebtedness pursuant to the kind referred Debt to Cash Flow Ratio test set forth in clause Section 4.09(1), and (2ii) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined receives consideration at the time of receipt such Asset Swap at least equal to the fair market value of such Designated Non-cash Consideration)the assets disposed of, with which fair market value shall be determined by the Fair Market Value Board of each item Directors of Designated Non-cash Consideration being measured at the time received Company or the Restricted Subsidiary, as the case may be, and without giving effect evidenced by a Board Resolution set forth in an Officers’ Certificate delivered to subsequent changes the Trustee; provided, however, that the determination of the Board of Directors shall be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing in valuethe United States or Canada if the fair market value exceeds US$25.0 million.
(c) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such those Net Proceeds at its option to any combination of the followingoption:
(1) to repaypermanently repay or reduce Indebtedness, repurchase other than Subordinated Indebtedness, of the Company or redeem any a Subsidiary Guarantor secured by such assets, Indebtedness of the Company or a Subsidiary Guarantor under Credit Facilities or Indebtedness of a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated not a Subsidiary Guarantor, and, if the Indebtedness repaid is revolving credit Indebtedness, to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companycorrespondingly reduce commitments with respect thereto;
(2) to acquire acquire, or enter into a binding agreement to acquire, all or substantially all of the assetsassets (other than cash, or Cash Equivalents and securities) of any Capital Stock, of one or more other Persons primarily Person engaged in the Oil and Gas a Permitted Business; provided, ifhowever, after giving effect to that any such commitment shall be subject only to customary conditions (other than financing), and such acquisition shall be consummated no later than 180 days after the end of Capital Stock, such Person becomes a Restricted Subsidiary of the Company360-day period;
(3) to make capital expenditures acquire, or enter into a binding agreement to acquire, Voting Stock of a Person engaged in respect a Permitted Business from a Person that is not an Affiliate of the Company’s or any ; provided, however, that such commitment shall be subject only to customary conditions (other than financing) and such acquisition shall be consummated no later than 180 days after the end of such 360-day period; and provided, further, however, that (a) after giving effect thereto, the Person so acquired becomes a Restricted Subsidiaries’ Oil Subsidiary and Gas Business(b) such acquisition is otherwise made in accordance with this Indenture, including, without limitation, Section 4.10 hereof; or
(4) to acquire acquire, or enter into a binding agreement to acquire, other long-term assets that are not classified as current assets under GAAP and (other than securities) that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause (2) or (4) of Section 4.10(c) ; provided, however, that such commitment shall be deemed subject only to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person customary conditions (other than an Affiliate of the Company within the time period specified in the preceding paragraph financing) and such Net Proceeds are subsequently applied in accordance with such contract within acquisition shall be consummated no later than 180 days following after the date end of such agreement is entered into360-day period. Pending the final application of any Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied applied, invested or invested segregated from the general funds of the Company for investment in identified assets pursuant to a binding agreement, in each case as provided in Section 4.10(cparagraph (c) will above shall constitute Excess Proceeds; provided, however, that the amount of any Net Proceeds that ceases to be so segregated as contemplated in paragraph (c) above shall also constitute “Excess Proceeds” at the time any such Net Proceeds cease to be so segregated; provided further, however, that the amount of any Net Proceeds that continues to be segregated for investment and that is not actually reinvested within twenty-four months from the date of the receipt of such Net Proceeds shall also constitute “Excess Proceeds.” ”
(e) When the aggregate amount of Excess Proceeds exceeds $20.0 US$35.0 million, within five days thereof, the Company will shall make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu in right of payment with the Notes or any Subsidiary Guarantee containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets assets, to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess ProceedsProceeds in accordance with the procedures set forth in Section 3.09 hereof. The offer price in any Asset Sale Offer will shall be equal to 100% of principal amount of the principal amountNotes and such other pari passu Indebtedness, plus accrued and unpaid interest, if any, interest to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale OfferOffer and all Holders of Notes have been given the opportunity to tender their Notes for purchase in accordance with such Asset Sale Offer and this Indenture, the Company or any Restricted Subsidiary may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes to and such other pari passu Indebtedness shall be purchased on a pro rata basis (except that any subject to Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes being in denominations of $2,000, 1,000 or an integral multiple multiples thereof) based on the principal amount of $1,000 in excess thereof, will be purchased)Notes and such other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the Asset Sales provisions of this Section 4.10Indenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such complianceconflict.
Appears in 1 contract
Samples: Indenture (Videotron Ltee)
Asset Sales. (a) The Company Issuers will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale unless:
(a1) the Company Issuers (or a the Restricted Subsidiary, as the case may be) receives receive consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; andof in such Asset Sale;
(b2) the fair market value is determined by such Issuer’s Board of Directors and evidenced by a Board Resolution set forth in an Officers’ Certificate delivered to the Trustee;
(3) at least 75% of the aggregate total consideration received in the Asset Sale by the Company such Issuer or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents; and
(4) if such Asset Sale involves the disposition of Collateral, such Issuer or such Guarantor (or the Restricted Subsidiary, as the case may be) has complied with the provisions of this Indenture and the Security Documents. For purposes of this provisionprovision and the next paragraph, each of the following will be deemed to be cash:
(1i) any liabilities, as shown on the CompanyNexstar’s most recent consolidated balance sheet, of the Company Issuers or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company such Issuer or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3ii) any securities, notes or other obligations received by the Company such Issuer or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company such Issuer or such Restricted Subsidiary within 180 days after receipt by such Issuer or Restricted Subsidiary into cashcash or Cash Equivalents, to the extent of the cash received in that conversion;; and
(4iii) any Capital Stock stock or assets of the kind referred to in clause clauses (2) or (4) of paragraph (b) of this Section 4.10(c); and
4.10. The 75% limitation referred to in clause (53) above will not apply to any Designated NonAsset Sale in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with the preceding provision, is equal to or greater than what the after-cash Consideration received by the Company or such Restricted Subsidiary in tax proceeds would have been had such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), complied with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in valueaforementioned 75% limitation.
(cb) Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (such Issuer or any such Restricted Subsidiary) , as the case may be, may apply an amount equal to such Net Proceeds at its option to any combination of the followingoption:
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companyrepay First Lien Obligations;
(2) to acquire all or substantially all of the assetsassets of, or any Capital Stocka majority of the Voting Stock of, of one or more other Persons primarily engaged in the Oil and Gas another Permitted Business, if, after giving effect to any such acquisition of Capital Stockacquisition, such assets are owned by the Issuers or a Restricted Subsidiary or the Person owning such Permitted Business is or becomes a Restricted Subsidiary of the CompanyIssuers; provided that if such Net Proceeds are received in respect of Collateral, such assets or Voting Stock are pledged as Collateral under the Security Documents in the manner required under the Security Documents;
(3) to make a capital expenditure in or that is used or useful in a Permitted Business or to make expenditures for maintenance, repair or improvement of existing assets in accordance with the terms of this Indenture; provided that if such Net Proceeds are received in respect of Collateral, such assets are pledged as Collateral under the Company’s or any Restricted Subsidiaries’ Oil and Gas BusinessSecurity Documents in the manner required under the Security Documents; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied ; provided that if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied received in accordance with respect of Collateral, such contract within 180 days following assets are pledged as Collateral under the date such agreement is entered intoSecurity Documents in the manner required under the Security Documents. Pending the final application of any Net Proceeds, the Company (Issuers may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) the preceding paragraph will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 10.0 million, within five days thereof, the Company Issuers will make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes and all (1) in the case of Net Proceeds from Collateral, to the holders of any other Pari Passu Secured Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers asset sales or (2) in the case of any other Net Proceeds, to purchaseall holders of other Pari Passu Indebtedness containing provisions similar to those set forth in this Indenture with respect to asset sales, prepay or redeem with the proceeds of sales of assets in each case, equal to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interestinterest and Additional Interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary Issuers 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 Secured Indebtedness (in the case of Net Proceeds from Collateral) or Notes and other Pari Passu Indebtedness (in the case of any other Net Proceeds) tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes and the Issuers or their agent shall select the other Pari Passu Secured Indebtedness or other Pari Passu Indebtedness, as the case may be, to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company .
(c) Each Issuer will comply with the requirements of Rule 14e-1 14e-l under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the Asset Sale provisions of this Section 4.10Indenture, the Company each Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such complianceconflict.
Appears in 1 contract
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) , receives consideration at the time of the that Asset Sale at least equal to the Fair Market Value (measured as evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration therefor received in the Asset Sale by the Company or a the Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of of:
(a) cash or Cash Equivalents; or
(b) property or assets that are used or useful in a Permitted Business, or the Capital Stock of any Person engaged in a Permitted Business if, as a result of the acquisition by the Company or any Restricted Subsidiary thereof, that Person becomes a Restricted Subsidiary. For the purposes of this provision, each of the following will shall be deemed to be cash:
(1i) any liabilities, as shown on the Company’s 's or the Restricted Subsidiary's most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such the Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3ii) any securities, notes or other obligations received by the Company or any the Restricted Subsidiary from such the transferee that are, within 180 days of the Asset Sale, are converted by the Company or such the Restricted Subsidiary into cashcash or Cash Equivalents within 180 days of their receipt by the Company of the Restricted Subsidiary, but only to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c)Cash Equivalents received; and
(5iii) any Designated Non-cash Noncash Consideration received by the Company or such any of its Restricted Subsidiary Subsidiaries in such that Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (e)iii) that is at that time outstanding, not to exceed an amount equal to 5.015% of the Company’s Adjusted Consolidated Net Tangible Total Assets (determined at the time of the receipt of such that Designated Non-cash Noncash Consideration), with the Fair Market Value of each item of Designated Non-cash Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value.
. The 75% limitation referred to in clause (c2) above will not apply to any Asset Sale in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with subclauses (i), (ii) and (iii) above, is equal to or greater than what the after-tax proceeds would have been had that Asset Sale complied with the aforementioned 75% limitation. Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any the Restricted Subsidiary) , as the case may be, shall apply such the Net Proceeds Proceeds, at its option to any combination of the followingoption, to:
(1) to repay, repurchase repay or redeem any purchase Indebtedness of the Company or a any Restricted Subsidiary Subsidiary, as the case may be, provided that if the Company shall so repay or purchase Indebtedness of the Company, other than (i) Indebtedness of an Issuer or a Guarantor Company that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate not secured by liens on any assets of the Company;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of Subsidiaries;
(a) it will equally and ratably reduce Indebtedness under the Notes if the Notes are then redeemable; or
(b) if the Notes may not then be redeemed, the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied shall make an offer, in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days thereof, the Company will make procedures set forth below for an offer (an “Asset Sale Offer”) , to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on purchase at a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer purchase price in any Asset Sale Offer will be equal to 100% of the principal amountAccreted Value of the Notes, plus accrued and unpaid interestinterest and Additional Interest, if any, thereon to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will that would otherwise be payable redeemed; or
(a) an investment in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offerproperty, the Company making of a capital expenditure or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount acquisition of Notes tendered assets that, in such Asset Sale Offer exceeds each case, are used or useful in a Permitted Business; or
(b) the amount acquisition of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions Capital Stock of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.Person primarily engaged in a Permitted Business if:
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Company's Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and
(b3) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalentscash equivalents. For purposes of this provision, each of the following will shall be deemed to be cash:
(1a) any liabilities, liabilities (as shown on the Company’s 's or such 66 Restricted Subsidiary's most recent consolidated balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guaranteeliabilities) that are assumed by the transferee of any such assets pursuant to a novation or indemnity agreement that releases another party and from which the Company or such and all of its Restricted Subsidiary Subsidiaries are released from or indemnifies the Company or such Restricted Subsidiary against further liability;; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are promptly (subject to ordinary settlement periods) converted by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) . Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the followingoption:
(1) to repayrepay Senior Indebtedness and, repurchase or redeem any if the Senior Indebtedness of the Company or a Restricted Subsidiary of the Companyrepaid is Revolving Credit Indebtedness, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companycorrespondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assetsassets of, or any Capital Stocka majority of the Voting Stock of, of one or more other Persons primarily engaged in the Oil and Gas another Permitted Business, if, after giving effect or to any acquire Equity Interests constituting a minority interest in a Person that at such acquisition of Capital Stock, such Person becomes time is a Restricted Subsidiary of the CompanySubsidiary;
(3) to make a capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Businessexpenditure; or
(4) to acquire other assets that are not classified as property, plant, equipment or other non-current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any such Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) the preceding paragraph will constitute “Excess Proceeds"EXCESS PROCEEDS.” " When the aggregate amount of Excess Proceeds exceeds $20.0 10.0 million, within five days thereof, the Company will shall make an offer to purchase (an “Asset Sale Offer”"ASSET SALE OFFER") to all Holders of the Notes and all holders of other Pari Passu Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Pari Passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any In an Asset Sale Offer will be Offer, the Company shall offer to repurchase such Notes and such Pari Passu Indebtedness in cash at a price equal to 100% of the principal amount, amount plus accrued and unpaid interestinterest thereon, if any, to the date of purchaserepurchase. Within 30 days following the date on which the Company becomes obligated 67 to make an Asset Sale Offer pursuant to this SECTION 410, prepayment the Company shall mail a notice to each Holder describing the transaction or redemption, subject transactions that constitute the Asset Sale and stating (1) that the Asset Sale Offer is being made pursuant to this SECTION 410 and (2) the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment purchase price and purchase date, which shall be no earlier than 30 days and will be payable in cashno later than 60 days from the date such notice is mailed (the "ASSET SALE PAYMENT DATE"), and containing the other provisions required by SECTION 1005. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the provisions of this Section 4.10SECTION 410, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 SECTION 410 by virtue of such complianceconflict.
(b) By 12:00 p.m. Eastern Time on the Asset Sale Payment Date, the Company shall, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered pursuant to the Asset Sale Offer; PROVIDED, however, that if the aggregate principal amount of such Notes and such Pari Passu Indebtedness tendered into such Asset Sale Offer exceeds the amounts of Excess Proceeds, the Trustee shall select the Notes and such other Pari Passu Indebtedness to be purchased on a pro rata basis;
(2) deposit with the Paying Agent an amount equal to the purchase price in respect of all Notes and Pari Passu Indebtedness or portions thereof to be so purchased; and
(3) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers' Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company. The Paying Agent shall promptly mail to each Holder of Notes accepted for such purchase the Asset Sale Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount of $1,000 or an integral multiple thereof.
Appears in 1 contract
Samples: Indenture (Iesi Tx Corp)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(b2) at least 7590% of the aggregate consideration therefor received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash cash, Cash Equivalents or Cash EquivalentsReplacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;liability therefor; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents within 90 days after such Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Proceeds at its option to any combination of the followingCash Proceeds:
(1) to repay, repurchase or redeem any Indebtedness of repay Senior Debt in accordance with the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;Common Terms Agreement and this Indenture; or
(2) to acquire all make any capital expenditure or substantially all to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the assetsNet Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are amount not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall so applied will be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Excess Proceeds.
(c) Pending the final application of any Net Cash Proceeds, the Company (may reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any .
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.10(c) 4.09 will constitute “Excess Proceeds.” When If on any date, the aggregate amount of Excess Proceeds exceeds $20.0 million100,000,000, then within five days thereoften Business Days after such date, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu Offer in accordance with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds3.09. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interestinterest and Additional Interest, if any, to to, but excluding, the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company or any and its Restricted Subsidiary Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.14 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.104.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 4.09 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will and the Guarantors shall not, and will shall not permit any of its the Restricted Subsidiaries to, consummate an Asset Sale unless:
(ai) The Company or the Company Guarantor (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) the fair market value is determined by the Company's Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and
(biii) at least 75% of the aggregate consideration received in the Asset Sale by the Company Company, such Guarantor or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents, except to the extent the Company is undertaking a Permitted Asset Swap. For purposes of this provisionprovision and the next paragraph, each of the following will shall be deemed to be cash:
(1A) any liabilities, as shown on the Company’s 's, such Guarantor's or such Restricted Subsidiary's most recent consolidated balance sheet, of the Company Company, any Guarantor or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company Company, such Guarantor or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company Company, such Guarantor or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company Company, such Guarantor or such Restricted Subsidiary within 90 days into cashcash or Cash Equivalents, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind . The 75% limitation referred to in clause (2iii) above shall not apply to any Asset Sale in which the cash or (4) Cash Equivalents portion of Section 4.10(c); and
(5) any Designated Nonthe consideration received therefrom, determined in accordance with the preceding provision, is equal to or greater than what the after-cash Consideration received by the Company or such Restricted Subsidiary in tax proceeds would have been had such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), complied with the Fair Market Value of each item of Designated Non-cash Consideration being measured at aforementioned 75% limitation. Notwithstanding the time received and without giving effect to subsequent changes in value.
(c) Within 360 days after the receipt of any Net Proceeds from an Asset Saleforegoing, the Company (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated shall be permitted to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to consummate an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply without complying with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.foregoing if:
Appears in 1 contract
Samples: Indenture (Nexstar Broadcasting of the Wichita Falls LLC)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale (other than a Designated Asset Disposition) unless:
(ai) the Company (or a Restricted Subsidiaryany of its Subsidiaries, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; andof (as determined by the Company's Board of Directors and evidenced by a resolution delivered to the Administrative Agent);
(bii) at least 7590% of the aggregate consideration received in the Asset Sale by the Company or a Restricted such Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalentscash. For purposes of this provision, each of the following will shall be deemed to be cash:
(1A) any liabilities, as shown on the Company’s 's most recent consolidated balance sheet, of the Company or any Restricted Subsidiary of its Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeTerm Loans and the Term Loan Guarantees) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity similar agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any Restricted such Subsidiary from such transferee that areare promptly, within 180 days of the Asset Salesubject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4iii) any Capital Stock or assets following the consummation of such Asset Sale, at least five Facilities that have achieved commercial operation continue to be owned and controlled by the kind referred to in clause (2) or (4) of Section 4.10(c)Company and its Subsidiaries; and
(5iv) any Designated Non-cash Consideration received by if the Company or such Restricted Subsidiary assets disposed of in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% include any component of a Facility that is necessary for the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt operation of such Designated Non-cash Consideration)Facility, with then the Fair Market Value Asset Sale must involve the disposition of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in valuesuch Facility as a whole.
(cb) Within 360 30 days after the receipt of any Net Proceeds from an Asset SaleSale (including a Designated Asset Disposition), the Company (Casualty Event or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days thereofCondemnation Event, the Company will make commence an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will pursuant to the terms of Section 2.11 hereof. The Offer Amount shall be equal to 100% the lesser of the principal amountNet Proceeds of such Asset Sale, plus accrued Casualty Event or Condemnation Event and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in Term Loan Obligations outstanding at the time of such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate engage in an Asset Sale unless:
unless (ai) the Company (or a such Restricted Subsidiary, as the case may be) , receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (bii) at least 75% of the aggregate consideration therefor received in the Asset Sale by the Company or a such Restricted Subsidiary from such Asset Sale and all other Asset Sales on a cumulative basis since the date of this Indenture Issue Date is in the form of cash or Cash Equivalents. For ; provided that, for purposes of this provision, the amount of each of the following will shall be deemed to be cash:
: (1a) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet), of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
; (2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion;
received) within 270 days of the consummation of such Asset Sale; (4c) any Capital Stock or assets of the kind referred to in clause clauses (2b), (c) or (4d) of the third paragraph of this Section 4.10(c)4.10; and
and (5d) any Designated Non-cash Consideration received accounts receivables of a business retained by the Company or any of its Restricted Subsidiaries following the sale of such Restricted Subsidiary in business; provided that (i) such accounts receivables are not more than 60 days past due and (ii) do not have a payment date greater than 90 days from the date of the invoice creating such accounts receivable. Any Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause a condemnation, appropriation or other similar taking, including by deed in lieu of condemnation, shall not be required to satisfy the conditions set forth in clauses (e), not to exceed an amount equal to 5.0% i) and (ii) of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time first paragraph of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) this Section 4.10. Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any such Restricted Subsidiary) , as the case may be, may apply such Net Proceeds Proceeds, at its option to any combination of the following:
option, (1a) to repay, repurchase or redeem any repay Indebtedness of the Company or a Restricted Subsidiary of the Company, for borrowed money other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note GuaranteesSubordinated Indebtedness, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;
(2b) to acquire a controlling interest in another business or all or substantially all of the assetsassets of a business, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3c) to make capital expenditures in respect of the Company’s a Permitted Business or any Restricted Subsidiaries’ Oil and Gas Business; or
(4d) to acquire other long-term assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business, provided that the Oil and Gas Business. The requirement of Company or such Restricted Subsidiary will have complied with clause (2b), (c) or (4d) if, within 365 days of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investmentsuch Asset Sale, acquisition or expenditure referred to therein is entered into by the Company or any of its such Restricted Subsidiaries Subsidiary shall have commenced and not completed or abandoned an investment in compliance with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph clause (b), (c) or (d) and such Net Proceeds are subsequently applied in accordance with such contract Investment is substantially completed within 180 days following after the date first anniversary of such agreement is entered intoAsset Sale. Pending the final application of any such Net Proceeds, the Company (may temporarily reduce Indebtedness under any Credit Facility or any Restricted Subsidiary) may otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) will the first sentence of this paragraph shall be deemed to constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days thereof30,000,000, the Company will shall be required to make an offer to all Holders of Notes and other Indebtedness that ranks by its terms pari passu in right of payment with the Notes and the terms of which contain substantially similar requirements with respect to the application of net proceeds from Asset Sales as are contained in this Indenture (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, purchase on a pro rata basis, basis the maximum principal amount of the Notes (and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount Indebtedness), that is an integral multiple of all fees and expenses$1,000, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amount, amount thereof plus accrued and unpaid interest, if any, interest thereon to the date of purchase, prepayment or redemption, subject in accordance with the procedures set forth in Section 3.09 hereof. To the extent that the aggregate amount of Notes and other such Indebtedness tendered pursuant to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale OfferOffer is less than the Excess Proceeds, the Company or any such Restricted Subsidiary Subsidiaries, as the case may be, may use those any remaining Excess Proceeds for any purpose not otherwise prohibited by this Indenturegeneral corporate purposes. If the aggregate principal amount of Notes tendered in such Asset Sale Offer surrendered by Holders thereof exceeds the amount of Excess Proceeds allocated available to the purchase of repurchase Notes, the Trustee will shall select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offeran offer to purchase as described in the immediately preceding sentence, the amount of Excess Proceeds will shall be reset at zero. The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Gulfmark Offshore Inc)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(ai) the Company or any of its Restricted Subsidiaries (or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(bii) at least 7585% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary Subsidiaries (measured as of the date of the definitive agreement with respect to such Asset Sale) and all other Asset Sales since the date of this Indenture Issue Date is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are forgiven or assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 90 days of after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4C) any Capital Stock stock or assets of the kind referred to in clause (2Section 4.10(b)(ii) or (4iv) hereof;
(D) accounts receivable of Section 4.10(c)a business retained by the Company or any of its Restricted Subsidiaries, as the case may be, following the sale of such business, provided that such accounts receivable do not have a payment date greater than 90 days from the date of the invoices creating such accounts receivable and are not past due; and
(5E) Indebtedness (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or a Note Guarantee) of any Designated Non-cash Consideration received by Restricted Subsidiary that is no longer a Restricted Subsidiary as a result of such Asset Sale; provided that the Company or such and each other Restricted Subsidiary are released from any Guarantee of such Indebtedness in connection with such Asset Sale; provided that in the case of any Asset Sale pursuant to a condemnation, appropriation or similar taking, including by deed in lieu of condemnation, such Asset Sale having shall not be required to satisfy the requirements of Sections 4.10(a)(i) and 4.10(a)(ii) above. Notwithstanding the preceding, the 85% limitation referred to above shall be deemed satisfied with respect to any Asset Sale in which the cash or Cash Equivalents portions of the consideration received therefrom, determined in accordance with the preceding provision on an aggregate Fair Market Valueafter-tax basis, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount is equal to 5.0% of or greater than what the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of after-tax proceeds would have been had such Designated Non-cash Consideration), Asset Sale complied with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in valueaforementioned 85% limitation.
(cb) Within 360 180 days after the receipt of any Net Proceeds from an Asset Sale, other than a Sale of Collateral, the Company (or any one or more of its Restricted Subsidiary) Subsidiaries may at its option apply cash in an amount equal to the amount of such Net Proceeds at its option to any combination of the following:
(1i) to repayrepay (or cash collateralize) (A) Priority Lien Obligations and, repurchase (B) to the extent required by the documents governing such Indebtedness, Indebtedness permitted to be incurred pursuant to Section 4.09(b)(iv) hereof, provided that such Indebtedness was incurred for the purpose of financing all or redeem any Indebtedness part of the Company purchase price or a Restricted Subsidiary cost of the Companydesign, other than (i) Indebtedness construction, installation or improvement of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companysuch assets;
(2ii) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3iii) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Permitted Business, including investments in multi- client data libraries; or
(4iv) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause (2ii) or (4iv) of this Section 4.10(c4.10(b) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure investment referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Within 180 days after the receipt of any Net Proceeds from an Asset Sale that constitutes a Sale of Collateral, the Company (or the Restricted Subsidiary that owned those assets, as the case may be) may at its option apply cash in an amount equal to the amount of such Net Proceeds to any combination of the following: (1) to purchase or invest in other long-term assets that would constitute Collateral; (2) to repay (or cash collateralize) Priority Lien Obligations or (3) to make capital expenditures in the Permitted Business, including investments in multi-client data libraries in each case, comprising Collateral; provided, however, that the aggregate amount of Net Proceeds that may be applied or invested pursuant to clauses (1) through (3) above shall not exceed $25.0 million in the aggregate during any fiscal year.
(d) All of the Net Proceeds from an Asset Sale that constitutes a Sale of Collateral shall be deposited directly into the Collateral Account; provided, that the Company and the Restricted Subsidiaries will not be required to cause any Net Proceeds to be held in the Collateral Account except to the extent that the aggregate amount of Net Proceeds from all Asset Sales that constitute a Sale of Collateral which are not held in the Collateral Account exceeds $25.0 million in the aggregate during any fiscal year. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c4.10(b) hereof will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 1.0 million, the Company may (and when the Excess Proceeds exceeds $10.0 million shall), within five days thereof, to the Company will extent permitted by the Intercreditor Agreement and the Credit Agreement, each as in effect as of the Issue Date, make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes Second Lien Debt containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase, prepay or redeem, on a pro rata basis, redeem the maximum principal amount of Notes and such other pari passu Indebtedness Second Lien Debt (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment dateInterest Payment Date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale OfferOffer (or expiration of the offer if no Holder accepts), the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other Second Lien Debt tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee Company will select the Notes and such other Second Lien Debt to be purchased on a pro rata basis (except that any Notes represented by a Note note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,0001,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale OfferOffer (or expiration of the offer if no holder accepts), the amount of Excess Proceeds will be reset at zero. .
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to a Change of Control Offer or an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Ion Geophysical Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(ai) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed ofof (in connection with a Large Asset Sale, as determined in writing by an accounting, appraisal or investment banking firm of national standing); and
(bii) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since of the date of this Indenture Company is in the form of cash Cash or Cash Equivalents. For purposes of this provisionSection 7.7, each of the following will shall be deemed to be cashCash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary of the Company (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed or forgiven by the transferee of any such assets pursuant to a customary novation or indemnity other agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability; provided that, if the entity consummating the Asset Sale is a Guarantor, or if the assets to be sold directly or indirectly include Equity Interests of a Guarantor, then only liabilities of a Guarantor that are assumed or forgiven by the transferee shall be included for purposes of this clause (1);
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashCash within 120 days after the consummation of the Asset Sale, to the extent of the cash Cash received in that conversion;
(43) except in connection with a Large Asset Sale, any Capital Stock stock or assets of the kind referred to in clause (2Section 7.7(c)(iv) or (4vi) of Section 4.10(c(including, without limitation, financing and leasing assets and related collateral); and
(54) Notes that are redeemed or repurchased (by exchange offer or otherwise) by the purchaser of the assets in connection with the transaction pursuant to which the Asset Sale is consummated; provided, however, that if such Asset Sale is made by any Designated Non-cash Consideration Subsidiary that is a Guarantor or any of its Subsidiaries, then such Cash, stock or assets referred to in Section 7.7(a)(ii)(2) through (4) must have been received by a Subsidiary that is a Guarantor or any of its Subsidiaries.
(b) If the assets or Equity Interests issued or sold or otherwise disposed of include assets or Equity Interests of the Issuer, notwithstanding any provision in the Indenture to the contrary, the Net Proceeds received by the Company or such Restricted Subsidiary of the Company shall be at least equal to the sum of (i) the amount then outstanding under the Credit Agreement plus (ii) an amount sufficient to repurchase all of the Notes then outstanding pursuant to an Asset Sale Offer assuming all such outstanding Notes were tendered in such an Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in valueOffer.
(c) Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale (other than a Large Asset Sale), the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option to any combination of the followingoption:
(1i) to repayrepay Indebtedness outstanding under Credit Facilities and, repurchase if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto;
(ii) to make one or redeem any Indebtedness of more offers to the Company or a Restricted Subsidiary Holders (and, at the option of the Company, the holders of Pari Passu Debt) to purchase Notes (and such other than (iPari Passu Debt) Indebtedness of an Issuer or a Guarantor that is subordinated pursuant to and subject to the Notes or the Note Guarantees, (ii) Capital Stock or conditions applicable to Asset Sale Offers in Section 3.3 herein;
(iii) to repurchase, repay or redeem Pari Passu Debt and, if the Indebtedness owed repaid is revolving credit Indebtedness, to an Affiliate of the Companycorrespondingly reduce commitments with respect thereto;
(2iv) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3v) to make a capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; orexpenditure;
(4vi) to acquire (or to provide funding to a Subsidiary of the Company to acquire) other assets that are not classified as current assets under GAAP and (including Portfolio Assets) that are used or useful in a Permitted Business or to otherwise fund a Permitted Business; or
(vii) to fund new originations of Portfolio Assets (including to fund revolver advances and obligations related to letters of credit provided to or on behalf of customers and borrowers under loan or letter of credit facilities in the Oil and Gas Ordinary Course of Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing provide funding to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within to facilitate the time period specified foregoing; provided that if the Net Proceeds applied to any of the uses set forth in clauses (iv) through (vii) above arise from a Sale of Collateral, then the preceding paragraph and assets or stock acquired with such Net Proceeds are subsequently applied in accordance with such contract within 180 shall be held by a Guarantor (or a direct or indirect Subsidiary of a Guarantor) and pledged as Collateral.
(d) Within 365 days following after the date such agreement is entered into. Pending the final application receipt of any Net ProceedsProceeds from a Large Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may invest must apply such Net Proceeds:
(i) First, to repay indebtedness outstanding under the Credit Agreement;
(ii) Second, to the extent of the balance of Net Proceeds after application in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied accordance with Section 7.7(d)(i), to make one or invested as provided in Section 4.10(c) will constitute “Excess Proceeds.” When more offers to the aggregate amount Holders and to the holders of Excess Proceeds exceeds $20.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) Series A Notes to all Holders of purchase the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar Series A Notes, pursuant to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date conditions applicable to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.Offers described in
Appears in 1 contract
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a) the Company (or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales consummated since the date of this Indenture Issue Date is in the form of cash or Cash EquivalentsEquivalents or any combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an the Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 50.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem such Indebtedness with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basisbasis (based on the principal amount of Notes and pari passu Indebtedness or, in the case of pari passu Indebtedness issued with significant original issue discount, based on the accreted value thereof tendered), the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amountamount of the Notes and other pari passu Indebtedness to be purchased (or the lesser amount required under the agreements governing such other pari passu Indebtdness), plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in minimum denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company may satisfy the foregoing obligations with respect to Excess Proceeds with respect to any series of Notes by making an Asset Sale Offer with respect to such series prior to the expiration of the relevant 365 day period or with respect to Excess Proceeds of $50.0 million or less. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.this
Appears in 1 contract
Samples: Indenture (Chesapeake Energy Corp)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (a) the Company (or a such Restricted Subsidiary, as the case may be) , receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as evidenced by a resolution of the date Board of Directors set forth in an Officers' Certificate delivered to the definitive agreement with respect to such Asset SaleTrustee) of the assets or Equity Interests issued or sold or otherwise disposed of; and
of and (b) at least 75% of the aggregate consideration therefor received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of (i) cash or Cash EquivalentsEquivalents or (ii) property or assets that are used or useful in a Permitted Business, or the Capital Stock of any Person engaged in a Permitted Business if, as a result of the acquisition by the Company or any Restricted Subsidiary thereof, such Person becomes a Restricted Subsidiary. For purposes of this provision, Section 4.10 each of the following will shall be deemed to be cash:
: (1x) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary's most recent consolidated balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guaranteeguarantee thereof) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
, (2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3y) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents within 180 days of their receipt by the Company or such Restricted Subsidiary, but only to the extent of the cash received in that conversion;
or Cash Equivalents received, and (4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5z) any Designated Non-cash Noncash Consideration received by the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Valuefair market value, taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (e)z) that is at that time outstanding, not to exceed an amount equal to 5.015% of the Company’s Adjusted Consolidated Net Tangible Total Assets (determined at the time of the receipt of such Designated Non-cash Consideration), Noncash Consideration (with the Fair Market Value fair market value of each item of Designated Non-cash Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value.
); PROVIDED that the 75% limitation referred to in clause (cb) above will not apply to any Asset Sale in which the cash or Cash Equivalents portion of the consideration received therefrom, determined in accordance with subclauses (x), (y) and (z) above, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or such Restricted Subsidiary, as the case may be, shall apply such Net Proceeds, at its option (or any Restricted Subsidiary) may to the extent the Company or Xxxxxxx Communications LLC is required to apply such Net Proceeds at its option pursuant to any combination the terms of the following:
New Credit Facility), to (1a) to repay, repurchase repay or redeem any purchase Senior Indebtedness or Pari Passu Indebtedness of the Company or a any Indebtedness of any Restricted Subsidiary Subsidiary, as the case may be; PROVIDED that if the Company shall so repay or purchase Pari Passu Indebtedness of the Company, other than it will equally and ratably reduce Indebtedness under the Notes if the Notes are then redeemable, or, if the Notes may not then be redeemed, the Company shall make an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all Holders of Notes to purchase at a purchase price equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase, the Notes that would otherwise be redeemed, or (b) an investment in property, the making of a capital expenditure or the acquisition of assets that are used or useful in a Permitted Business, or the acquisition of Capital Stock of any Person primarily engaged in a Permitted Business if (i) Indebtedness of an Issuer or as a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate result of the Company;
(2) to acquire all or substantially all of acquisition by the assets, Company or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital StockRestricted Subsidiary thereof, such Person becomes a Restricted Subsidiary or (ii) the Investment in such Capital Stock is permitted by clause (f) of the Company;
(3) to make capital expenditures in respect definition of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered intoPermitted Investments. Pending the final application of any such Net Proceeds, the Company (may temporarily reduce Indebtedness or any Restricted Subsidiary) may otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) the first sentence of this paragraph will be deemed to constitute “Excess Proceeds.” "EXCESS PROCEEDS". When the aggregate amount of Excess Proceeds exceeds $20.0 15.0 million, within five days thereof, the Company will be required to make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar (an "ASSET SALE OFFER") to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The , at an offer price in any Asset Sale Offer will be cash in an amount equal to 100% of the principal amountamount thereof, plus accrued and unpaid interestinterest and Liquidated Damages, if any, thereon to the date of purchase, prepayment or redemption, subject to in accordance with the rights of Holders of procedures set forth in this Indenture. To the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If extent that any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered surrendered by Holders thereof in such connection with an Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will shall select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair set forth under Sections 3.02 and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)3.03 hereof. Upon completion of each Asset Sale Offersuch offer to purchase, the amount of Excess Proceeds will shall be reset at zero. The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each the repurchase of the Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the provisions of this Section 4.10Indenture relating to such Asset Sale Offer, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or described in this Section 4.10 Indenture by virtue of such compliancethereof.
Appears in 1 contract
Samples: Indenture (Merrill Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received by the Company and its Restricted Subsidiaries in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. Any Asset Sale pursuant to a condemnation, expropriation, appropriation, or other similar taking, including by deed in lieu of condemnation, shall not be required to satisfy the conditions set forth in Section 4.17(a)(1) above. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes Notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, are within 180 days of after the Asset Sale, subject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;; and
(4C) any Capital Stock stock or assets of the kind referred to in clause clauses (23) or (45) of Section 4.10(c4.17(b); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option to any combination of the followingProceeds:
(1) to repaythe extent the Net Proceeds are attributable to an Asset Sale of assets that constitute Collateral (x) subject to the Hedging Intercreditor Agreement, repurchase to reduce, prepay, repay or redeem purchase any Indebtedness of First-Priority Obligations (other than the Notes); provided that the Company at least ratably reduces, prepays, repays or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to purchases the Notes or (y) to make an offer (in accordance with the Note Guaranteesprocedures set forth below for a Asset Sale Offer), (ii) Capital Stock redeem Notes as described under Section 3.07 or (iii) Indebtedness owed purchase Notes through open-market purchases or in privately negotiated transactions that are offered to an Affiliate all holders of the CompanyNotes on a pro rata basis;
(2) to the extent such Net Proceeds are from an Asset Sale that does not constitute Collateral, (x) to reduce, prepay, repay or purchase any Indebtedness secured by a Lien on such asset, (y) to reduce, prepay, repay or purchase Pari Passu Indebtedness; provided, that the Company ratably reduces, prepays, repays or purchases the Notes or (z) to make an offer (in accordance with the procedures set forth below for an Asset Sale Offer), redeem Notes as described under Section 3.07 or purchase Notes through open-market purchases or in privately negotiated transactions that are offered to all holders of the Notes on a pro rata basis (in each case, other than Indebtedness owed to the Company or any Restricted Subsidiary); provided, however, that, in connection with any reduction, prepayment, repayment or purchase of Indebtedness pursuant to this clause (2), the Company or such Restricted Subsidiary will retire such Indebtedness and will cause the related commitment, to the extent the assets sold or otherwise disposed of in connection with such Asset Sale constituted “borrowing base assets,” to be reduced in an amount equal to the principal amount so reduced, prepaid, repaid or purchased;
(3) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(34) to make a capital expenditures expenditure in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas a Permitted Business; or
(45) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement In the case of clause (2) or (43) of this Section 4.10(c) 4.17(b), a binding commitment shall be deemed to be satisfied if treated as a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate permitted application of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with from the date of such contract within 180 days commitment until the earlier of (x) the date on which such acquisition is consummated, and (y) the 180th day following the date such agreement is entered intoexpiration of the aforementioned 365 day period. Pending the final application of any Net Proceeds, the Company (or any the applicable Restricted Subsidiary) may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in clauses (1) through (5) of Section 4.10(c4.17(b) of this Indenture will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 US$15.0 million, within five thirty days thereofof exceeding such amount, the Company will make an offer (an “Asset Sale Offer”) ), to all Holders of the Notes and all holders of other Indebtedness that is pari passu with Notes and, if required by the Notes containing provisions similar terms of any First-Priority Obligations, subject to those set forth in this Section 4.10 with respect to offers the Hedging Intercreditor Agreement, to purchase, prepay or redeem with the proceeds maximum principal amount of sales of assets to purchase, prepay or redeemNotes and First-Priority Obligations, on a pro rata basis, the maximum principal amount of Notes and secured by such other pari passu Indebtedness Collateral (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. .
(d) The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to to, but not including, the date of purchase, prepayment or redemption, subject to the rights of Holders holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. .
(e) If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. .
(f) If the aggregate principal amount of Notes and First-Priority Obligations, secured by Collateral tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will purchased, shall be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $US$2,000, or an integral multiple of $US$1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Greenfire Resources Ltd.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the greater of (A) the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of and (B) an amount equal to the invested cost of the assets sold or otherwise disposed of, less depreciation; and
(b2) at least 7590% of the aggregate consideration therefor received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash cash, Cash Equivalents or Cash EquivalentsReplacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a written novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;liability therefor; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents within 90 days after such Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 days after the receipt of any Net Cash Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply an amount equal to such Net Proceeds at its option to any combination of the followingCash Proceeds:
(1) to repay, repurchase or redeem any Indebtedness of repay Senior Debt in accordance with the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;Common Terms Agreement and this Indenture; or
(2) to acquire all make any capital expenditure or substantially all to purchase Replacement Assets (or enter into a binding agreement to make such capital expenditure or to purchase such Replacement Assets; provided that (A) such capital expenditure or purchase is consummated within the later of (i) 360 days after the receipt of the assetsNet Cash Proceeds from the related Asset Sale and (ii) 180 days after the date of such binding agreement and (B) if such capital expenditure or purchase is not consummated within the period set forth in subclause (A), or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are amount not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall so applied will be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Excess Proceeds.
(c) Pending the final application of any Net Cash Proceeds, the Company (may reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the Net Cash Proceeds in any manner that is not prohibited by this Indenture. Any .
(d) An amount equal to any Net Cash Proceeds from Asset Sales that are not applied or invested as provided in the preceding clauses of this Section 4.10(c) 4.09 will constitute “Excess Proceeds.” When If on any date, the aggregate amount of Excess Proceeds exceeds $20.0 million100,000,000, then within five days thereoften Business Days after such date, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu Offer in accordance with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds3.09. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interestinterest to, if anybut excluding, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, purchase and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company or any and its Restricted Subsidiary Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(e) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by the provisions of Section 4.13 and/or the provisions of Section 5.01 and not by the provisions of this Section 4.09.
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 or this Section 4.104.09, or compliance with the provisions of Section 3.09 or this Section 4.09 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 4.09 by virtue of such compliance.
Appears in 1 contract
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a) the Company (or a any of its Restricted SubsidiarySubsidiaries, as the case may be) , receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any of its Restricted Subsidiary Subsidiaries (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any of its Restricted Subsidiary Subsidiaries where the Company or such Restricted Subsidiary retains an interest in such property, any agreement by the transferee thereof (or any Affiliate thereof) to pay the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to paythereto;
(3) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c)) hereof; and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e5), not to exceed an amount equal to 5.010.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any one or more of its Restricted Subsidiary) Subsidiaries may apply an amount equal to the amount of such Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the CompanySenior Debt;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any of its Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) hereof shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any of its Restricted Subsidiary) Subsidiaries may use or invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any The Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) hereof will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days thereoften Business Days thereof (or earlier, at the Issuer’s option), the Company Issuer will make an offer in accordance with the procedure set forth in Section 3.09 (an “Asset Sale Offer”) to all Holders of Notes (with a copy to the Notes Trustee) and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem such Indebtedness with the proceeds of sales of assets assets, to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Notes and other Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any of its Restricted Subsidiary Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is in accordance with the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by lawApplicable Procedures of DTC), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in minimum denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.104.10 hereof, the Company Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Berry Petroleum Corp)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale Sale, unless:
(a1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) at least equal to the fair market value (measured at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration for such Asset Sale, together with all other Asset Sales since the Issue Date (on a cumulative basis), received by the Company or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture , is in the form of cash or Cash Equivalents. For purposes of this provision, ; provided that each of the following will be deemed to be cash:cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(1A) any liabilities, liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent consolidated balance sheet or in the notes thereto or, if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Company’s or a Restricted Subsidiary’s consolidated balance sheet or in the notes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or any Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any Note Guarantee) Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets pursuant (or a third party in connection with such transfer) or (ii) otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to a novation or indemnity agreement that releases the Company or such a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or indemnifies in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or such a Restricted Subsidiary against further liabilityinto cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(2C) any Designated Non-Cash Consideration received by the Company or a Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (i) $100.0 million and (ii) 5% of Adjusted Consolidated Net Tangible Assets of the Company at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value;
(D) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or a Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale;
(E) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 4.10(b)(2); and
(F) with respect to any Asset Sale of oil Oil and natural gas properties Gas Properties disposed of by the Company or any Restricted Subsidiary where in which the Company or such any Restricted Subsidiary retains an interest in such propertyinterest, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties Oil and Gas Properties and activities related thereto which agreed to be assumed by the transferee (or an Affiliate thereof) agrees to pay;
(3) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 365 days after the receipt of any Net Proceeds from an of any Asset SaleSale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company (or any a Restricted Subsidiary) , at its option, may apply such an amount equal to the Net Proceeds at its option to any combination of the followingfrom such Asset Sale:
(1) to repay, repurchase redeem or redeem any repurchase:
(A) Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect of Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Obligations owed to the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;Subsidiary; or
(2) to acquire all or substantially all of the assets, or make (a) an Investment in any Capital Stock, of one or more other Persons primarily engaged businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Company or any Restricted Subsidiary owning an amount of the Capital Stock of such business such that it constitutes or continues to constitute a Restricted Subsidiary, (b) capital expenditures, (c) other expenditures made with respect to Oil and Gas BusinessProperties, if, after giving effect to (d) acquisitions by the Company or any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company;
(3) to make capital expenditures in respect of the Company’s Company or any Restricted Subsidiaries’ Oil Subsidiary of other assets, other than securities, in the case of clauses (a),(d) and Gas Business; or
this clause (4e), either (i) to acquire other assets that are not classified as current assets under GAAP and that are or will be used or useful in the Oil and Gas Business. The requirement Business or (ii) that replace, in whole or in part, the properties or assets that are the subject of such Asset Sale; provided that in the case of this clause (2) or (4) ), a binding commitment will be treated as a permitted application of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by Net Proceeds from the date of such commitment so long as the Company or a Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (or, if later, 365 days after the receipt of such Net Proceeds); provided, further, that if any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such commitment is later cancelled or terminated for any reason before such Net Proceeds are subsequently applied in accordance with applied, then such contract within 180 days following Net Proceeds will constitute Excess Proceeds (as defined below); or
(3) any combination of the date such agreement is entered into. foregoing.
(c) Pending the final application of the amount of any Net ProceedsProceeds pursuant to this covenant, the Company (and its Restricted Subsidiaries may temporarily reduce Indebtedness, or any Restricted Subsidiary) may invest the otherwise use such Net Proceeds in any manner that is not prohibited by this the Indenture. Any .
(d) The amount equal to the Net Proceeds from Asset Sales that are not invested or applied or invested as provided and within the time period set forth in Section 4.10(c4.10(b) will be deemed to constitute “Excess Proceeds.” ”. When the aggregate amount of Excess Proceeds exceeds $20.0 50.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders and, at the option of the Notes and all Company, to any holders of other any Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes (“Pari Passu Indebtedness” and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expensesoffer, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an “Asset Sale Offer”), to purchase the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the maximum aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes and such Pari Passu Indebtedness that is in an amount equal to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of at least $2,000, or an integral multiple of $1,000 in excess of $2,000, that may be purchased out of the Excess Proceeds at an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, will if less), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other price, if any, as may be purchasedprovided for by the terms of such Pari Passu Indebtedness), to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures set forth in Section 3.09 (or, in respect of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). Upon completion of each The Company will commence an Asset Sale Offer, Offer with respect to Excess Proceeds within 30 days after the date that the amount of Excess Proceeds exceeds $50.0 million by mailing or electronically delivering the notice required pursuant to Section 3.09, with a copy to the Trustee, or otherwise in accordance with Applicable Procedures. The Company may satisfy the foregoing obligation with respect to any Net Proceeds from an Asset Sale by making an offer to purchase Notes with respect to the amount of all or part of the available Net Proceeds (the “Advance Portion”) prior to the expiration of the Asset Sale Proceeds Application Period with respect to the amount of all or a part of the available Net Proceeds in advance of being required to do so by this Indenture (the “Advance Offer”). To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds (or in the case of an Advance Offer, the Advance Portion), the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in any manner not prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the Pari Passu Indebtedness surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance Offer, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will select the Notes to be purchased in the manner described under Section 3.02 and the Company will select such Pari Passu Indebtedness to be purchased pursuant to the terms of such Pari Passu Indebtedness; provided that as between the Notes and any Pari Passu Indebtedness, such purchases will be made on a pro rata basis based on the accreted value or principal amount of the Notes or such Pari Passu Indebtedness tendered with adjustments as necessary so that no Notes or Pari Passu Indebtedness will be repurchased in part in an unauthorized denomination. Upon completion of any such Asset Sale Offer, for purposes of this provision the amount of Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) that resulted in the Asset Sale Offer or Advance Offer will be reset to zero (regardless of whether there are any remaining Excess Proceeds (or Advance Portion) upon such completion). An Asset Sale Offer or Advance Offer may be made at zero. the same time as consents are solicited with respect to an amendment, supplement or waiver of this Indenture, Notes and/or Guarantees (but the Asset Sale Offer or Advance Offer may not condition tenders on the delivery of such consents).
(e) [Reserved].
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and or regulations are applicable in connection with each the repurchase of the Notes pursuant to an Asset Sale Offer or Advance Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the provisions of this Section 4.10Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or described in this Indenture by virtue thereof.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 by virtue may be waived or modified with the written consent of such compliancethe Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Samples: Indenture (Vine Energy Inc.)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a) the Company (or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture Start Date is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed or novated by the transferee of any or that are otherwise cancelled, forgiven or terminated in connection with the transaction with such assets pursuant to a novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liabilitytransfer;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e5), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply an amount equal to such Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer the Company or a Guarantor that is subordinated in right of payment to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any The amount equal to the Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) will constitute “Excess Proceeds.” ”. When the aggregate amount of Excess Proceeds exceeds $20.0 25.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The Company may satisfy the foregoing obligations with respect to any Net Proceeds from an Asset Sale by making an Asset Sale Offer with respect to such Net Proceeds or equivalent amount prior to the time period that may be required by this Indenture with respect to all or a part of the available Net Proceeds (the “Advance Portion”) in advance of being required to do so by this Indenture (an “Advance Offer”). The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if anyto, to but not including, the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds (or in the case of an Advance Offer, Advance Portion) remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds (or Advance Portion) for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by lawrequire), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company Trustee so that only Notes in minimum denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer (or Advance Offer), the amount of Excess Proceeds (or Advance Portion) will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer or Advance Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Permian Resources Corp)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries Subsidiary to, consummate cause, make or suffer to exist an Asset Sale Sale, unless:
(a1) the Company (or a such Restricted Subsidiary, as the case may be) , receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value fair market value (measured as of determined in good faith by the date of the definitive agreement with respect to such Asset SaleCompany) of the assets or Equity Interests issued or sold or otherwise disposed ofof (notwithstanding the foregoing, the consideration received by the Company or any of its Restricted Subsidiaries from (A) the sale of the Saginaw, Michigan facility on terms materially consistent with the terms, as in effect as of October 6, 2003, set forth in Exhibit 5 to the Long Term Agreement as in effect as of October 6, 2003 between General Motors Corporation and Alchem Aluminum Inc., dated as of February 26, 1999, (B) the sale of an investment in the Zhenjiang Joint Venture as required by the Zhenjiang Joint Venture Agreement as existing on the Issue Date and (C) sales, transfers and other dispositions of Investments in other joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture agreements and similar binding agreements, shall, in each case, be deemed to be fair market value for purposes of this Section 1018(a)); and
(b2) except in the case of a Permitted Asset Swap, at least 75% of the aggregate consideration therefor received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since Subsidiary, as the date of this Indenture case may be, is in the form of cash or Cash Equivalents. For purposes of this provision, each of ; provided that the following will be deemed to be cash:amount of
(1A) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, sheet or in the notes thereto) of the Company or any such Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) Notes, that are assumed by the transferee of any such assets pursuant to (or a novation or indemnity agreement that releases third party on behalf of the transferee) and for which the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;has been validly released by all creditors in writing,
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations or assets received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion;
(4received) any Capital Stock or assets within 180 days following the closing of the kind referred to in clause (2) or (4) of Section 4.10(c); such Asset Sale and
(5C) any Designated Non-cash Noncash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Valuefair market value, taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (e)C) that has not previously been converted to cash, not to exceed an amount equal to 5.0the greater of (x) $100.0 million and (y) 3.0% of the Company’s Adjusted Consolidated Net Tangible Total Assets (determined at the time of receipt of such Designated Non-cash Noncash Consideration), with the Fair Market Value fair market value of each item of Designated Non-cash Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value, shall be deemed to be cash for purposes of this provision and for no other purpose.
(cb) Within 360 450 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement Subsidiary’s receipt of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale OfferSale, the Company or any such Restricted Subsidiary may use those Excess may, at its option, apply the Net Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in from such Asset Sale Offer exceeds the amount of Excess Proceeds allocated Sale:
(1) to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.permanently reduce
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provisionclause (2) only, each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3b) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within 180 30 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;; and
(4c) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c4.10(b); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase purchase, repurchase, redeem, defease or redeem any otherwise acquire, retire or terminate (a) Indebtedness and all other Obligations related thereto that are secured by a Lien or (b) Obligations under Indebtedness of the Company or a Restricted Subsidiary of the Company, that is not a Guarantor (other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the CompanyIssuer or another Restricted Subsidiary);
(2) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Subsidiary’s Oil and Gas Business; or
(4) to acquire assets (other assets than Capital Stock) that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. .
(c) The requirement of clause clauses (2) or through (4) of Section 4.10(c4.10(b) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries Subsidiary, as the case may be, with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days six months following the date such agreement is entered into. .
(d) Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture. hereby, including temporarily reducing revolving credit borrowings.
(e) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c4.10(b) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five 30 days thereofthereafter, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes Notes, and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 herein with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interestinterest and Special Interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenturehereby. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased purchased, prepaid or redeemed on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed not to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
(g) All references herein to “Net Proceeds” and “Excess Proceeds” shall be deemed to mean cash in an amount equal to the amount of Net Proceeds or Excess Proceeds but not necessarily the actual cash received from the relevant Asset Sale. The Company and its Subsidiaries shall have no obligation to segregate, trace or otherwise identify Net Proceeds or Excess Proceeds (other than the amount thereof), it being agreed that cash is fungible and that the Company’s obligations under this Section 4.10 may be satisfied by the application of funds from other sources.
Appears in 1 contract
Samples: Indenture (Diamondback Energy, Inc.)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(ai) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) such fair market value is determined in accordance with the provisions of the definition of fair market value; and
(biii) at least 75% of the aggregate consideration therefor received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash cash, Cash Equivalents or Cash EquivalentsReplacement Assets or a combination of both. For purposes of this provisionSection 4.10(a)(iii), each of the following will shall be deemed to be cash:
(1A) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary's most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities liabilities, Indebtedness that are is by their it terms subordinated to the Notes or any Note GuaranteeGuarantee and liabilities to the extent owed to the Company or any Restricted Subsidiary of the Company) that are assumed by the transferee of any such assets or Equity Interests pursuant to a novation or indemnity an agreement that releases the Company or such Restricted Subsidiary Subsidiary, as the case may be, from or indemnifies the Company or such Restricted Subsidiary against further liability;; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary Subsidiary, as the case may be, from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cash, Cash 68 Equivalents within 180 days (to the extent of the cash Cash Equivalents received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any such Restricted Subsidiary) Subsidiary may apply such Net Proceeds at its option and to any combination of the followingextent it so elects:
(1i) to repayrepay (a) Senior Debt and, repurchase or redeem if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto and (b) if there is no Senior Debt outstanding, any outstanding Indebtedness of the Company or a any Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or Company that is not a Guarantor that and, if such Indebtedness repaid is subordinated revolving credit Indebtedness, to the Notes or the Note Guarantees, correspondingly reduce commitments thereunder;
(ii) Capital Stock to purchase Replacement Assets or (iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all make a capital expenditure in or substantially all of the assets, that is used or any Capital Stock, of one or more other Persons primarily engaged useful in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Permitted Business; or
(4iii) to acquire other assets any combination of the foregoing; PROVIDED that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall Company will be deemed to be satisfied have complied with Section 4.10(b)(ii) if a bona fide binding contract committing and to make the investmentextent that, acquisition or expenditure referred to therein is within 365 days after the Asset Sale that generated the Net Proceeds, the Company has entered into by and not abandoned or rejected a binding agreement to purchase Replacement Assets or make a capital expenditure in compliance with Section 4.10(b)(ii), and that purchase or capital expenditure is thereafter completed within 90 days after the Company or any end of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into365-day period. Pending the final application of any such Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c4.10(b) will shall constitute “Excess Proceeds"EXCESS PROCEEDS.” When " Within 10 days after the aggregate amount of Excess Proceeds exceeds $20.0 10.0 million, within five days thereof, the Company will shall make an offer (an “Asset Sale Offer”"ASSET SALE OFFER") to all Holders of the Notes and all holders of other Indebtedness that is pari passu PARI PASSU with the Notes or any Note Guarantee containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay or redeem purchase with the proceeds of sales of assets assets, to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu PARI PASSU Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price for the Notes and any PARI PASSU Indebtedness in any Asset Sale Offer will be equal to 100% of the principal amount, amount of the Notes and such other PARI PASSU Indebtedness plus accrued and unpaid interestinterest and Liquidated Damages, if any, on the Notes and any PARI PASSU Indebtedness to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other PARI PASSU Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes to and such other PARI PASSU Indebtedness shall be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with principal amount of Notes and such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)other PARI PASSU Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. .
(d) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the Asset Sales provisions of this Section 4.10Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Solo Texas, LLC)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will shall be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that areare contemporaneously, within 180 days of the Asset Salesubject to ordinary settlement periods, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;; and
(4C) any Capital Stock stock or assets of the kind referred to in clause clauses (2) or (4) of the next paragraph of this Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) 4.10. Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option to any combination of the followingoption:
(1) to repay, repurchase prepay or redeem any purchase Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness of under a Credit Facility, to correspondingly reduce commitments with respect thereto; provided, that the Company or a such Restricted Subsidiary of shall not be required to reduce the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed related commitments to an Affiliate of the Companyaggregate principal amount less than $400.0 million;
(2) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Businessexpenditure; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this Section 4.10(c) 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 50.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets in accordance with Section 3.09 hereof to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.Excess
Appears in 1 contract
Samples: Indenture (Georgia Gulf Corp /De/)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(ai) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(bii) either (x) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash EquivalentsEquivalents or (y) the Fair Market Value of all forms of consideration other than cash and Cash Equivalents received for all Asset Sales since March 13, 2007 does not exceed in the aggregate 10% of the Adjusted Consolidated Net Tangible Assets of the Company at the time each determination is made. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash within 180 days after the date of the Asset Sale, to the extent of the cash received in that conversion;
(4C) any Capital Stock stock or assets of the kind referred to in clause clauses (2ii) or (4iv) of Section 4.10(c)10.12(b) below; and
(5D) any Designated Non-cash Consideration received accounts receivable of a business retained by the Company or any Restricted Subsidiary, as the case may be, following the sale of such Restricted Subsidiary in business, provided that such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause accounts receivable (e), 1) are not to exceed an amount equal to 5.0% past due more than 90 days and (2) do not have a payment date greater than 120 days from the date of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of invoice creating such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in valueaccounts receivable.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may may:
(i) apply such Net Proceeds at its option to any combination of the following:repay Senior Debt;
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or apply such Net Proceeds to invest in Additional Assets;
(iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any apply such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) Net Proceeds to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement a Related Business of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries Subsidiaries; or
(iv) enter into a bona fide binding contract with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest to apply the Net Proceeds in any manner pursuant to clauses (ii) or (iii) above, provided that such binding contract shall be treated as a permitted application of the Net Proceeds from the date of such contract until the earlier of:
(A) the date on which such acquisition or expenditure is not prohibited by this Indentureconsummated, and
(B) the 180th day following the expiration of the aforementioned 360-day period. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(cclauses (i) through (iv) above will constitute “Excess Proceeds.” When 52 Eleventh Supplemental Indenture
(c) On the 361st day (or upon the failure to close the contract referred to in clause (iv) of Section 10.12(b) above within the 180 day time period thereafter) after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $20.0 40.0 million, within five days thereof, the Company will make an offer (an the “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets assets, to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(d) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company, or of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by Sections 8.1 and/or 10.15 of this Indenture, as applicable, and not by this Section 10.12.
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the Asset Sale provisions of this Section 4.10Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such compliance.
Appears in 1 contract
Samples: Eleventh Supplemental Indenture (Plains Exploration & Production Co)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration (including by way of relief from, or by any Person assuming responsibility for, any liabilities, contingent or otherwise) at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors and, if such fair market value exceeds $50.0 million, is set forth in an Officers’ Certificate delivered to the Trustee; and
(b3) at least 75% of the aggregate fair market value of all forms of consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash cash, Cash Equivalents or Cash Equivalentsassets or Voting Stock of a type referred to in clauses (2), (3) or (4) of paragraph (b) of this Section 4.12. For purposes of this provisionSection 4.12, each of the following will shall be deemed to be cash:
(1A) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cash, cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received in that conversion;
(4) any Capital Stock or assets within 180 days of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such related Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in valueSale.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds may, at its option to any combination of the followingoption:
(1) apply such Net Proceeds to permanently repay, repurchase purchase or redeem any retire unsubordinated Indebtedness of the Company or a any Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the CompanySubsidiary;
(2) apply such Net Proceeds to acquire all or substantially all of the assetsassets of, or any Capital Stocka majority of the Voting Stock of, of one or more other Persons primarily engaged in another business reasonably related to the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary business of the Company;
(3) apply such Net Proceeds to make a capital expenditures expenditure used or useful in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; orbusiness;
(4) apply such Net Proceeds to acquire other long-term assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement Company’s business; or
(5) enter into a binding agreement with respect to the application of clause such Net Proceeds described in clauses (2), (3) or (4) of Section 4.10(c) this paragraph (b); provided that such binding agreement shall be deemed to be satisfied if treated as a bona fide binding contract committing to make permitted application of the investment, Net Proceeds from the date of such commitment until the earliest of (x) the date on which such acquisition or expenditure referred to therein is entered into by consummated, and (y) the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate 180th day following the expiration of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered intoaforementioned 360-day period. Pending the final application of any such Net Proceeds, the Company (or any Restricted Subsidiary) Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in paragraph (b) of this Section 4.10(c) 4.12 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 40.0 million, then within five 45 Business Days after the later of the application of Net Proceeds in accordance with paragraph (b) of this Section 4.12 and the date that is 360 days thereoffollowing the receipt of the Net Proceeds, to the extent of the balance of Net Proceeds after application in accordance with paragraph (b) of this Section 4.12, the Company will make an offer (an “Asset Sale Offer”) Offer to all Holders of Notes and, at the Notes and Company’s option, all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets assets, to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and and, at the Company’s option, such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interest, if any, to to, but not including, the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and, at the Company’s option, such other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will shall select the Notes and any such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with principal amount of Notes and any such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. .
(d) The Company will make the Asset Sale Offer in accordance with the procedures set forth in Section 3.08 hereof and will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the Asset Sale provisions of this Section 4.10Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or 3.08 hereof and this Section 4.10 4.12 by virtue of such complianceconflict.
Appears in 1 contract
Samples: Senior Unsecured Term Loan Agreement (Pilgrims Pride Corp)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a) the Company (or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes Notes, with a copy to the Trustee, and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is in accordance with the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate applicable DTC procedures) unless otherwise required by law)law or applicable stock exchange or depositary requirements, based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries Subsidiary to, consummate an Asset Sale Sale, unless:
(a1) the Company or such Restricted Subsidiary, as the case may be, receives consideration (including by way of relief from, or by any other Person assuming responsibility for, any liabilities, contingent or otherwise, in connection with such Asset Sale) at least equal to the fair market value (measured at the time of contractually agreeing to such Asset Sale) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration for such Asset Sale, together with all other Asset Sales since May 6, 2021 (on a cumulative basis), received by the Company or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture , is in the form of cash or Cash Equivalents. For purposes of this provision, ; provided that each of the following will be deemed to be cash:cash or Cash Equivalents for purposes of this Section 4.10(a)(2):
(1A) any liabilities, liabilities (as shown on the Company’s or any Restricted Subsidiary’s most recent consolidated balance sheet or in the notes thereto or, if incurred or accrued subsequent to the date of such balance sheet, such liabilities that would have been reflected on the Company’s or a Restricted Subsidiary’s consolidated balance sheet or in the notes thereto if such incurrence or accrual had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company) of the Company or any Restricted Subsidiary (Subsidiary, other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Notes or any Note Guarantee) Guarantor’s Guarantee of the Notes, that are (i) assumed by the transferee of any such assets pursuant (or a third party in connection with such transfer) or (ii) otherwise cancelled or terminated in connection with the transaction with such transferee (other than intercompany debt owed to a novation or indemnity agreement that releases the Company or such a Restricted Subsidiary);
(B) any securities, notes or other obligations or assets received by the Company or a Restricted Subsidiary from such transferee or indemnifies in connection with such Asset Sale (including earnouts and similar obligations) that are converted by the Company or such a Restricted Subsidiary against further liabilityinto cash or Cash Equivalents, or by their terms are required to be satisfied for cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing of such Asset Sale;
(2C) any Designated Non-Cash Consideration received by the Company or a Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed the greater of (i) $300.0 million and (ii) 5.0% of Adjusted Consolidated Net Tangible Assets of the Company at the time of the receipt of such Designated Non-Cash Consideration, with the fair market value of each item of Designated Non-Cash Consideration being measured, at the Company’s option, either at the time of contractually agreeing to such Asset Sale or at the time received and, in either case, without giving effect to subsequent changes in value;
(D) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such Asset Sale (other than intercompany debt owed to the Company or a Restricted Subsidiary), to the extent that the Company and each other Restricted Subsidiary are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such Asset Sale;
(E) any Investment, Capital Stock, assets, property or capital or other expenditure of the kind referred to in Section 4.10(b)(2); and
(F) with respect to any Asset Sale of oil Oil and natural gas properties Gas Properties disposed of by the Company or any Restricted Subsidiary where in which the Company or such any Restricted Subsidiary retains an interest in such propertyinterest, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties Oil and Gas Properties and activities related thereto which agreed to be assumed by the transferee (or an Affiliate thereof) agrees to pay;
(3) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 365 days after the receipt of any Net Proceeds from an of any Asset SaleSale (as may be extended pursuant to clause (2) below, the “Asset Sale Proceeds Application Period”), the Company (or any a Restricted Subsidiary) , at its option, may apply an amount equal to such Net Proceeds at its option to any combination of (the following:“Applicable Proceeds”):
(1) to repay, repurchase redeem or redeem any repurchase:
(A) Obligations in respect of Senior Indebtedness; or
(B) Obligations in respect of Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Obligations owed to the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;Subsidiary; or
(2) to acquire all or substantially all of the assets, or make (a) an Investment in any Capital Stock, of one or more other Persons primarily engaged businesses; provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Company or any Restricted Subsidiary owning an amount of the Capital Stock of such business such that it constitutes or continues to constitute a Restricted Subsidiary, (b) capital expenditures, (c) other expenditures made with respect to Oil and Gas BusinessProperties, if, after giving effect to (d) acquisitions by the Company or any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of properties (including fee and leasehold interests) or (e) acquisitions by the Company;
(3) to make capital expenditures in respect of the Company’s Company or any Restricted Subsidiaries’ Oil Subsidiary of other assets, other than securities, in the case of clauses (a),(d) and Gas Business; or
this clause (4e), either (i) to acquire other assets that are not classified as current assets under GAAP and that are or will be used or useful in the Oil and Gas Business. The requirement Business or (ii) that replace, in whole or in part, the properties or assets that are the subject of such Asset Sale; provided that in the case of this clause (2) or (4) ), a binding commitment will be treated as a permitted application of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by Applicable Proceeds from the date of such commitment so long as the Company or any of its a Restricted Subsidiaries Subsidiary enters into such commitment with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and good faith expectation that such Net Applicable Proceeds are subsequently will be applied in accordance with to satisfy such contract commitment within 180 days following of such commitment (or, if later, 365 days after the date receipt of such agreement Applicable Proceeds); provided, further, that if any such commitment is entered into. later cancelled or terminated for any reason before such Applicable Proceeds are applied, then such Applicable Proceeds will constitute Excess Proceeds (as defined below); or
(3) any combination of the foregoing.
(c) Pending the final application of the amount of any Net ProceedsApplicable Proceeds pursuant to this covenant, the Company (and its Restricted Subsidiaries may temporarily reduce Indebtedness, or any Restricted Subsidiary) may invest the Net otherwise use such Applicable Proceeds in any manner that is not prohibited by this the Indenture. Any Net .
(d) The amount equal to the Applicable Proceeds from Asset Sales that are not invested or applied or invested as provided and within the time period set forth in Section 4.10(c4.10(b) will be deemed to constitute “Excess Proceeds.” ”. When the aggregate amount of Excess Proceeds exceeds $20.0 50.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders and, at the option of the Notes and all Company, to any holders of other any Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes (“Pari Passu Indebtedness” and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expensesoffer, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an “Asset Sale Offer”), to purchase the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the maximum aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes and such Pari Passu Indebtedness that is in an amount equal to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of at least $2,000, or an integral multiple of $1,000 in excess of $2,000, that may be purchased out of the Excess Proceeds at an offer price, in the case of the Notes, in cash in an amount equal to 100% of the principal amount thereof (or accreted value thereof, will if less), plus accrued and unpaid interest, if any (or, in respect of such Pari Passu Indebtedness, such other price, if any, as may be purchasedprovided for by the terms of such Pari Passu Indebtedness), to, but excluding, the date fixed for the closing of such offer, in accordance with the procedures set forth in Section 3.09 (or, in respect of such Pari Passu Indebtedness, the agreement or instrument governing the terms thereof). Upon completion of each The Company will commence an Asset Sale Offer, Offer with respect to Excess Proceeds within 30 days after the date that the amount of Excess Proceeds exceeds $50.0 million by mailing or electronically delivering the notice required pursuant to Section 3.09, with a copy to the Trustee, or otherwise in accordance with Applicable Procedures. The Company may satisfy the foregoing obligation with respect to any Applicable Proceeds from an Asset Sale by making an offer to purchase Notes with respect to the amount of all or part of the available Applicable Proceeds (the “Advance Portion”) prior to the expiration of the Asset Sale Proceeds Application Period with respect to the amount of all or a part of the available Applicable Proceeds in advance of being required to do so by this Indenture (the “Advance Offer”). To the extent that the aggregate principal amount (or accreted value, as applicable) of Notes and such Pari Passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds (or in the case of an Advance Offer, the Advance Portion), the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) in any manner not prohibited by this Indenture. If the aggregate principal amount (or accreted value, as applicable) of Notes and/or the Pari Passu Indebtedness surrendered in an Asset Sale Offer exceeds the amount of Excess Proceeds (or in the case of an Advance Offer, the Advance Portion), the Trustee, in accordance with the Applicable Procedures, will select the Notes to be purchased in the manner described under Section 3.02 and the Company will select such Pari Passu Indebtedness to be purchased pursuant to the terms of such Pari Passu Indebtedness; provided that as between the Notes and any Pari Passu Indebtedness, such purchases will be made on a pro rata basis based on the accreted value or principal amount of the Notes or such Pari Passu Indebtedness tendered with adjustments as necessary so that no Notes or Pari Passu Indebtedness will be repurchased in part in an unauthorized denomination. Upon completion of any such Asset Sale Offer, for purposes of this provision the amount of Excess Proceeds (or in the case of an Advance Offer, the Advance Portion) that resulted in the Asset Sale Offer or Advance Offer will be reset to zero (regardless of whether there are any remaining Excess Proceeds (or Advance Portion) upon such completion) and the Company may use any remaining Excess Proceeds for any purpose not otherwise prohibited under this Indenture. An Asset Sale Offer or Advance Offer may be made at zero. the same time as consents are solicited with respect to an amendment, supplement or waiver of this Indenture, Notes and/or Guarantees (but the Asset Sale Offer or Advance Offer may not condition tenders on the delivery of such consents).
(e) [Reserved].
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and or regulations are applicable in connection with each the repurchase of the Notes pursuant to an Asset Sale Offer or Advance Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the provisions of this Section 4.10Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or described in this Indenture by virtue thereof.
(g) The Company’s obligation to make an offer to repurchase the Notes pursuant to this Section 4.10 by virtue may be waived or modified with the written consent of such compliancethe Holders of a majority in principal amount of the then outstanding Notes.
Appears in 1 contract
Samples: Indenture (Crescent Energy Co)
Asset Sales. The Company will notnot consummate, and will not permit any of its Restricted Subsidiaries toto consummate, consummate an Asset Sale unless:
(a1) the Company (or a any of its Restricted Subsidiary, as the case may be) Subsidiaries receives consideration at the time of the Asset Sale at least equal to the Fair Market Value fair market value (measured as of to be determined on the date of the definitive contractual agreement with respect to such Asset SaleSale by the parties thereto) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received by the Company and its Restricted Subsidiaries in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales Sales, on a cumulative basis, since the date of this Indenture Issue Date is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeSubsidiary Guarantees) that are assumed by the transferee of any such assets pursuant to a novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from in such transferee transaction that are, are within 180 days of after the Asset SaleSale (subject to ordinary settlement periods), converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5C) any Designated Non-cash Consideration received by the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an Sale; provided that the aggregate Fair Market Valuefair market value of such Designated Non-cash Consideration, taken together with the fair market value at the time of receipt of all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an C) less the amount equal to of Net Proceeds previously realized in cash or Cash Equivalents from prior Designated Non-cash Consideration is less than the greater of (x) 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of the receipt of such Designated Non-cash Consideration), Consideration (with the Fair Market Value fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
) and (cy) $20.0 million. Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, Sale the Company (or any of its Restricted Subsidiary) Subsidiaries may apply such Net Proceeds at its option to any combination (or enter into a definitive agreement for such application within such 365-day period, provided that such application occurs within 180 days after the end of the following:such 365-day period):
(1) to repay, repurchase or redeem any repay Senior Indebtedness of the Company or a its Restricted Subsidiary Subsidiaries (or to make an offer to repurchase or redeem such Indebtedness; provided that such repurchase or redemption or offer for repurchase or redemption closes within 45 days after the end of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companysuch 365-day period);
(2) to acquire all or substantially all of the assetsproperties or assets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditures expenditure in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas a Permitted Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) Subsidiary may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) the second paragraph of this Section 4.10 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 50.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem such Indebtedness with the proceeds of sales of assets assets, to purchase, prepay purchase or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid purchased or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interest, if any, thereon to the date of purchase, prepayment purchase or redemption, subject to the rights right of Holders of the Notes on the relevant record date to receive interest due on an Interest Payment Date that is on or prior to the relevant interest payment purchase or redemption date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee then Notes will select the Notes to be purchased on a pro rata basis (except that any or, in the case of Global Notes, the Notes represented by a Note in global form thereby will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by lawpurchased in accordance with DTC’s prescribed method), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The In making an Asset Sale Offer, the Company will comply with the applicable requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offerregulations. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the provisions of this Section Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or the provisions of this Section Section 4.10 by virtue of such compliance.
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) such fair market value is determined in good faith by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers’ Certificate delivered to the Trustee; and
(b3) at least 75% of the aggregate consideration therefor received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash cash, Cash Equivalents or Cash EquivalentsMarketable Securities. For purposes of this provision, each of the following will shall be deemed to be cash:
(1a) any liabilities, liabilities (as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cash, cash within 90 days after such Asset Sale (to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or and any Restricted Subsidiary) Subsidiary may apply such Net Proceeds at its option to any combination of the followingoption:
(1) to repay, repurchase or redeem repay Senior Debt and any Indebtedness of the Company or a any Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companynot a Guarantor;
(2) to acquire all or substantially all of the assetsassets of, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary majority of the CompanyVoting Stock of, another Permitted Business that is owned by the Company or a Guarantor;
(3) to make a capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Businessexpenditure; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein Permitted Business that is entered into owned by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered intoGuarantor. Pending the final application of any such Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may other Indebtedness or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture.
(c) Notwithstanding Sections 4.10(b) and (c) hereof, the Company and its Restricted Subsidiaries will be permitted to consummate an Asset Sale without complying with such Sections to the extent (i) at least 75% of the consideration for such Asset Sale constitutes Productive Assets, cash, Cash Equivalents and/or Marketable Securities and (ii) such Asset Sale is for fair market value (as determined in good faith by the Board of Directors and certified to in an Officer’s Certificate); provided that any cash consideration not constituting Productive Assets received by the Company or any of its Restricted Subsidiaries in connection with any Asset Sale permitted to be consummated under this Section 4.10(c) shall be subject to the provisions of Section 4.10(b). In addition, the Company and its Restricted Subsidiaries shall not be required to comply with this Section 4.10 if the Company or any of its Restricted Subsidiaries is required to transfer any of its assets into a trust for FCC regulatory purposes, if such trust then sells or disposes of such assets or if either the Company or a Restricted Subsidiary of the Company is ordered by the FCC or a court to transfer any asset, so long as any Net Proceeds received by the Company and its Restricted Subsidiaries are applied in accordance with this Section 4.10.
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c4.10(b) hereof will constitute “Excess Proceeds.” . When the aggregate amount of Excess Proceeds exceeds $20.0 10.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interestinterest and Special Interest thereon, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. .
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.09 hereof or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 hereof or this Section 4.10 by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Emmis Operating Co)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(ai) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) such fair market value is determined by the Company's Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and
(biii) at least 75% of the aggregate consideration therefor received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash cash, Cash Equivalents or Cash EquivalentsReplacement Assets or a combination thereof. For purposes of this provisionSection 4.10(a)(iii), each of the following will shall be deemed to be cash:
(1A) any liabilities, Indebtedness or other liabilities (as shown on the Company’s 's or such Restricted Subsidiary's most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and Indebtedness or other liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a novation or indemnity agreement that releases and, in the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale case of oil and natural gas properties by the Company or any Restricted Subsidiary liabilities other than Non-Recourse Debt, where the Company or such and all Restricted Subsidiary retains an interest Subsidiaries are released from any further liability in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;connection therewith; and
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee or any other Person on account of such Asset Sale that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cash, cash within 180 days after the date of such Asset Sale (to the extent of the cash received in that conversion;).
(4C) cash held in escrow as security for any Capital Stock purchase price settlement, for damages in respect of a breach of representations and warranties or assets covenants or for payment of other contingent obligations in connection with the kind referred to in clause (2) or (4) of Section 4.10(c)Asset Sale; and
(5D) any Designated Non-cash Noncash Consideration received by the Company or such any Restricted Subsidiary thereof in such Asset Sale having an aggregate Fair Market Valuea fair market value, taken together with all other Designated Non-cash Noncash Consideration received pursuant to this clause (e)D) that is at that time outstanding, not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined $10.0 million at the time of receipt of such Designated Non-cash Noncash Consideration), with the Fair Market Value fair market value of each item of Designated Non-cash Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value. For purposes of clause (iii) above, any liabilities of the Company or any Restricted Subsidiary that are not assumed by the transferee of such assets in respect of which the Company and all Restricted Subsidiaries are not released from any future liabilities in connection therewith shall not be considered consideration.
(cb) Within 360 days after On or prior to the 366th day following the receipt of any Net Proceeds from an Asset Sale, the Company (or any such Restricted Subsidiary) Subsidiary may apply such Net Proceeds at its option to any combination of the followingoption:
(1i) (A) to repay, repurchase repay or redeem any Indebtedness prepay Senior Debt or (B) in the case where the property or asset that was the subject of such Asset Sale is encumbered by a Lien of the Company or a Restricted Subsidiary type described in the definition of the Company, other than (i) term "Permitted Lien," to repay the Permitted Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, was secured by such Lien;
(ii) Capital Stock to purchase Replacement Assets or make a capital expenditure (iiior enter into a legally binding agreement to do so) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all that is used or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged useful in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Permitted Business; or
(4iii) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate combination of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered intoforegoing. Pending the final application of any such Net Proceeds, the Company (or any Restricted Subsidiary) Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. .
(c) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c4.10(b) will shall constitute “Excess Proceeds"EXCESS PROCEEDS.” When " Within 10 days after the aggregate amount of Excess Proceeds exceeds $20.0 15.0 million, within five days thereof, the Company will shall make an offer (an “Asset Sale Offer”"ASSET SALE OFFER") to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes or any Note Guarantee containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay or redeem purchase with the proceeds of sales of assets assets, to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will shall be equal to 100% of the principal amount, amount of the Notes and such other pari passu Indebtedness plus accrued and unpaid interestinterest and Liquidated Damages, if any, on the Notes and any pari passu Indebtedness, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes to and such other pari passu Indebtedness shall be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with principal amount of Notes and such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. .
(d) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the Asset Sales provisions of this Section 4.10Indenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of compliance with such compliancesecurities laws and regulations.
Appears in 1 contract
Samples: Indenture (Ames True Temper, Inc.)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(ai) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; andand 51 Thirteenth Supplemental Indenture
(bii) either (x) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash EquivalentsEquivalents or (y) the Fair Market Value of all forms of consideration other than cash and Cash Equivalents received for all Asset Sales since March 13, 2007 does not exceed in the aggregate 10% of the Adjusted Consolidated Net Tangible Assets of the Company at the time each determination is made. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash within 180 days after the date of the Asset Sale, to the extent of the cash received in that conversion;
(4C) any Capital Stock stock or assets of the kind referred to in clause clauses (2ii) or (4iv) of Section 4.10(c)10.12(b) below; and
(5D) any Designated Non-cash Consideration received accounts receivable of a business retained by the Company or any Restricted Subsidiary, as the case may be, following the sale of such Restricted Subsidiary in business, provided that such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause accounts receivable (e), 1) are not to exceed an amount equal to 5.0% past due more than 90 days and (2) do not have a payment date greater than 120 days from the date of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of invoice creating such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in valueaccounts receivable.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any of its applicable Restricted SubsidiarySubsidiaries) may may:
(i) apply an amount equal to such Net Proceeds at its option to any combination of the following:repay Senior Debt;
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or apply an amount equal to such Net Proceeds to invest in Additional Assets;
(iii) Indebtedness owed apply an amount equal to an Affiliate of the Company;
(2) to acquire all or substantially all of the assets, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) Net Proceeds to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement a Related Business of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries Subsidiaries; or
(iv) enter into a bona fide binding contract with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any Restricted Subsidiary) may invest to apply an amount equal to the Net Proceeds in any manner pursuant to clauses (ii) or (iii) above, provided that such binding contract shall be treated as a permitted application of the Net Proceeds from the date of such contract until the earlier of:
(A) the date on which such acquisition or expenditure is not prohibited by this Indentureconsummated, and
(B) the 180th day following the expiration of the aforementioned 360-day period. 52 Thirteenth Supplemental Indenture Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(cclauses (i) through (iv) above will constitute “Excess Proceeds.” When ”
(c) On the 361st day (or upon the failure to close the contract referred to in clause (iv) of Section 10.12(b) above within the 180 day time period thereafter) after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $20.0 40.0 million, within five days thereof, the Company will make an offer (an the “Asset Sale Offer”) to all Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets assets, to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(d) Notwithstanding the foregoing, the sale, conveyance or other disposition of all or substantially all of the assets of the Company, or of the Company and its Restricted Subsidiaries, taken as a whole, will be governed by Sections 8.1 and/or 10.15 of this Indenture, as applicable, and not by this Section 10.12.
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the Asset Sale provisions of this Section 4.10Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such compliance.
Appears in 1 contract
Samples: Thirteenth Supplemental Indenture (Plains Exploration & Production Co)
Asset Sales. The Company will not, and will not permit any of ----------- its Restricted Subsidiaries to, consummate an Asset Sale unless:
unless (ai) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(bii) such fair market value is determined by the Company's Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers' Certificate delivered to the Trustee; and (iii) at least 75% of the aggregate consideration therefor received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will shall be deemed to be cashCash Equivalents:
(1a) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary's most recent consolidated balance sheet), of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a novation or indemnity agreement that releases and from which the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;is unconditionally released; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, are within 180 thirty (30) days of the Asset Sale, receipt thereof converted by the Company or such Restricted Subsidiary into cash, cash (to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) . Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness that (a) was incurred under clause (i) of the second paragraph of Section 4.09 or (b) was incurred under any other provision hereof and the Company at the time of such repayment would not otherwise be able to incur an Issuer or a Guarantor that is subordinated additional $1.00 of indebtedness under the Fixed Charge Coverage Ratio pursuant to the Notes or the Note Guaranteesfirst paragraph of Section 4.09, to correspondingly reduce commitments with respect to such revolving credit Indebtedness; (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assetsassets of, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary majority of the Company;
Voting Stock of, another Permitted Business; (3iii) to make a capital expenditures expenditure in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas that is used or useful in a Permitted Business; or
or (4iv) to acquire other long-term assets that are not classified as current assets under GAAP and in or that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any such Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenturehereunder. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) the preceding paragraph will constitute “"Excess Proceeds.” " When the aggregate amount of Excess Proceeds exceeds $20.0 10.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes and Additional Notes, if any, and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 herein with respect to offers to purchase, prepay or redeem purchase with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and Additional Notes, if any, and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interestinterest and Liquidated Damages, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those such Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will shall select the Notes and Additional Notes, if any, and such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with principal amount of Notes and Additional Notes and such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)other pari passu Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will shall be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the provisions of this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 or Section 3.09 hereof, by virtue of such complianceconflict.
Appears in 1 contract
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of;
(2) the Fair Market Value is determined by the Company’s Board of Directors and evidenced by a resolution of the Board of Directors set forth in an Officers’ Certificate delivered to the Trustee; and
(b3) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and from all other Asset Sales since the date of this Indenture Issue Date, in the aggregate, is in the form of cash or Cash EquivalentsAdditional Assets. For purposes of this provision, each of the following will be deemed to be cash:
(1A) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms expressly subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3B) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, are converted within 180 90 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any such Restricted Subsidiary) Subsidiary may apply such those Net Proceeds at its option to any combination of the following:
(1) to repayrepay or repurchase Indebtedness and other Obligations under a Credit Facility, repurchase any other First Lien Obligations and Indebtedness and other Obligations arising under or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated pursuant to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the CompanyNotes;
(2) to acquire all or substantially all of the assets, properties or any Capital Stock, assets of one or more other Persons primarily engaged in the Oil and Gas Business, ifand, for this purpose, a division or line of business of a Person shall be treated as a separate Person so long as such properties and assets are acquired by the Company or a Restricted Subsidiary;
(3) to acquire a majority of the Voting Stock of one or more other Persons primarily engaged in the Oil and Gas Business, if after giving effect to any such acquisition of Capital Voting Stock, such Person is or becomes a Restricted Subsidiary of the CompanySubsidiary;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Business; or
(4) to make one or more capital expenditures; or
(5) to acquire other long-term assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. The requirement of clause .
(2c) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (or any such Restricted Subsidiary) Subsidiary may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) the preceding paragraph will constitute “Excess Proceeds.” When On the 361st day after the Asset Sale (or, at the Company’s option, any earlier date), if the aggregate amount of Excess Proceeds then exceeds $20.0 15.0 million, within five days thereof, the Company will make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes Notes, and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets assets, to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interestinterest and Additional Interest, if any, to the date of purchase, prepayment or redemptionsettlement, subject to the rights right of Holders of the Notes record on the relevant record date to receive interest due on the relevant an interest payment datedate that is on or prior to the date of settlement, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes and the Company or its agent shall select such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(e) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the Asset Sale provisions of this Section 4.10Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such complianceconflict.
Appears in 1 contract
Samples: Indenture (Windstar Energy, LLC)
Asset Sales. (a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed of; and
(b2) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provisionclause (2) only, each of the following will be deemed to be cash:
(1a) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets (or an Affiliate thereof) pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3b) any securities, notes or other obligations received by the Company or any Restricted Subsidiary from such transferee that are, within 180 days of after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion;
(4c) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c4.10(b); and;
(5d) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e)d) that is at that time outstanding, not to exceed an amount equal to no greater than 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of the receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value; and
(e) with respect to any Asset Sale of Oil and Gas Properties by the Company or a Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such property and activities related thereto that the transferee of such property (or an Affiliate thereof) agrees to pay.
(cb) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the following:
(1) to repay, repurchase purchase, repurchase, redeem, defease or redeem any otherwise acquire, retire or terminate (a) Indebtedness and all other Obligations related thereto that are secured by a Lien or (b) Obligations under Indebtedness of a Restricted Subsidiary that is not a Guarantor (other than Indebtedness owed to the Company or a another Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the CompanySubsidiary);
(2) to acquire all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Subsidiary’s Oil and Gas Business; or
(4) to acquire assets (other assets than Capital Stock) that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas Business. .
(c) The requirement of clause clauses (2) or through (4) of Section 4.10(c4.10(b) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries Subsidiary, as the case may be, with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days six months following the date such agreement is entered into. Pending the final application of any Net Proceeds, the .
(d) The Company (or any Restricted Subsidiary) may expend or invest the Net Proceeds in any manner that is not prohibited by this Indenture. hereby, including temporarily reducing revolving credit borrowings.
(e) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c4.10(b) will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five 30 days thereofthereafter, the Company will make an offer (an “Asset Sale Offer”) to all Holders of the Notes Notes, and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 herein with respect to offers to purchase, prepay or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interestinterest and Special Interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenturehereby. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in (or required to be prepaid or redeemed in connection with) such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased purchased, prepaid or redeemed on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC the Depositary or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered or required to be prepaid or redeemed (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(f) The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10, the Company will comply with the applicable securities laws and regulations and will not be deemed not to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such compliance.
(g) All references herein to “Net Proceeds” and “Excess Proceeds” shall be deemed to mean cash in an amount equal to the amount of Net Proceeds or Excess Proceeds but not necessarily the actual cash received from the relevant Asset Sale. The Company and its Subsidiaries shall have no obligation to segregate, trace or otherwise identify Net Proceeds or Excess Proceeds (other than the amount thereof), it being agreed that cash is fungible and that the Company’s obligations under this Section 4.10 may be satisfied by the application of funds from other sources.
Appears in 1 contract
Samples: Indenture (Diamondback Energy, Inc.)
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale unless:
unless (ai) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the such Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(ii) the fair market value is determined by (a) an executive officer of the Company if the value is less than $10.0 million and evidenced by an officer's certificate delivered to the Trustee or (b) the Company's Board of Directors if the value is $10.0 million or more and evidenced by a resolution of such Board of Directors delivered to the Trustee; and (iii) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash EquivalentsEquivalents or any combination thereof. For purposes of this provision, Section 4.10 each of the following will shall be deemed to be cash:
: (1a) any liabilities, liabilities (as shown on the Company’s 's or such Restricted Subsidiary's most recent consolidated balance sheet, ) of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
liability and (2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents within 180 days following the closing of such Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) . Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any Restricted Subsidiary) may apply such Net Proceeds at its option to any combination of the following:
(1i) to repay, repurchase repurchase, redeem, defease or redeem any Indebtedness otherwise acquire or retire Senior Debt of the Company or any Indebtedness of a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, Subsidiary; (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Company;
(2) to acquire all or substantially all of the assetsassets of, or any Capital Stock, of one or more other Persons primarily engaged in the Oil and Gas Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary majority of the Company;
Voting Stock of, another Permitted Business; (3iii) to make a capital expenditures expenditure in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas a Permitted Business; or
or (4iv) to acquire other long-term assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any such Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) the preceding paragraph will constitute “"Excess Proceeds.” " When the aggregate amount of Excess Proceeds exceeds $20.0 million, within five days thereof, the Company will be required to make an offer (an “"Asset Sale Offer”") to all Holders of and to the Notes and extent required, to all holders of other Indebtedness of the Company that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets assets, to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes (in integral multiples of $1,000) and such other pari passu Indebtedness (plus all accrued interest on of the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) Company that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amountamount of Notes and other pari passu Indebtedness to be purchased or the lesser amount required under agreements governing such other pari passu Indebtedness, plus accrued and unpaid interestinterest and Additional Interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those such laws and regulations are applicable in connection with each the repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or provisions of this Section 4.10covenant, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 covenant by virtue of such complianceconflict.
Appears in 1 contract
Samples: Indenture (Parker Drilling Co /De/)
Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(a1) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed ofof (provided that Fair Market Value will be determined on the date of contractually agreeing to such Asset Sale); and
(b2) except in the case of a Permitted Asset Swap, at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalentscash. For purposes of this provisionclause (2), each of the following will be deemed to be cash:
(1a) Cash Equivalents;
(b) any liabilities, as shown on the Company’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note GuaranteeNotes) that are assumed by the transferee of any such assets pursuant to a novation or indemnity an agreement that releases the Company or such Restricted Subsidiary from from, or indemnifies the Company or such Restricted Subsidiary against against, further liability;
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3c) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, are converted within 180 days of the Asset Sale, converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion;
(4d) any Capital Stock stock or assets of the kind referred to in clause clauses (2) or (4) of the next paragraph of this Section 4.10(c)4.12; and
(5e) any Designated Non-cash Consideration received by the Company or such any of its Restricted Subsidiary Subsidiaries in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e)) that is at that time outstanding, not to exceed an amount equal to 5.0the greater of (x) $20.0 million and (y) 3.5% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Total Assets. Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any the applicable Restricted Subsidiary, as the case may be) may apply such Net Proceeds at its option to any combination of the followingProceeds:
(1) to repaypermanently repay or prepay (x) to the extent such Net Proceeds are attributable to an Asset Sale of assets that constitute ABL Priority Collateral, repurchase Indebtedness and other Obligations (or redeem any Indebtedness cash collateralize outstanding letters of credit with a corresponding reduction of commitments with respect thereto) under a Credit Facility that is incurred in compliance with clause (1) of Section 4.09(b) and secured by a Permitted Lien described in clause (1) of the Company definition thereof and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly permanently reduce commitments with respect thereto or (y) to the extent such Net Proceeds are attributable to an Asset Sale of assets of a Restricted Subsidiary of the Companythat is not a Guarantor, other than (i) Indebtedness of an Issuer or a Guarantor Restricted Subsidiary that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companynot a Guarantor;
(2) to acquire (including by way of a purchase of assets or stock, merger, consolidation or otherwise) all or substantially all of the assetsassets of, or any Capital StockStock of, of one or more other Persons primarily engaged in the Oil and Gas another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person the Permitted Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Businessexpenditure; or
(4) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business; provided that in the Oil and Gas Business. The requirement case of clause clauses (2), (3) or and (4) above, a legally binding commitment will be treated as a permitted application of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by Net Proceeds from the date of such commitment so long as the Company or any of its such other Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and Subsidiary applies such Net Proceeds are subsequently applied in accordance with such contract within 180 days following of entering into such commitment (an “Acceptable Commitment”); provided, further, that if any Acceptable Commitment is cancelled or terminated for any reason more than 365 days after the date receipt of such agreement is entered intoNet Proceeds, then such Net Proceeds will constitute Excess Proceeds. Pending the final application of any Net Proceeds, the Company or a Restricted Subsidiary may temporarily reduce revolving credit borrowings (under the Credit Facilities or any Restricted Subsidiaryotherwise) may or otherwise invest the Net Proceeds in any manner that is not otherwise prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this Section 4.10(c) 4.12 will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 15.0 million, within five 30 days thereof, the Company will make an offer (an “Asset Sale Offer”) Offer to all Holders of the Notes and all holders of other Pari Passu Indebtedness that is pari passu with the Notes evidenced or governed by Pari Passu Payment Lien Documents containing provisions similar to those set forth in this Section 4.10 Indenture with respect to mandatory prepayments and offers to purchase, prepay purchase or redeem with the proceeds of sales of assets to purchase, prepay or redeem, on a pro rata basis, purchase the maximum principal amount of Notes and such other pari passu Pari Passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, amount plus accrued and unpaid interestinterest and Additional Interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and such Pari Passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes and the Company (or the applicable agent for such Pari Passu Indebtedness) will select such Pari Passu Indebtedness to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the Asset Sale provisions of this Section 4.10Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such compliance.
Appears in 1 contract
Samples: Indenture (Xerium Technologies Inc)
Asset Sales. (a) The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
(ai) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed ofof (except in respect of Designated Assets sold pursuant to a Designated Asset Contract);
(ii) the fair market value or Designated Asset Value, as applicable, in the case of any Asset Sales or series of related Asset Sales having a fair market value of $25.0 million or more, is determined by the Company’s Board of Directors and evidenced by a resolution of Board of Directors set forth in an Officers’ Certificate delivered to the Trustee; and
(biii) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provisionSection 4.10(a)(iii) only, each of the following will be deemed to be cash:
(1) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation or indemnity agreement that releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;; and
(2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents within 90 days after the applicable Asset Sale, to the extent of the cash or Cash Equivalents received in that conversion.
(3) notes or other obligations or Indebtedness actually received by the Company or any such Restricted Subsidiary as consideration for the sale or other disposition of a Designated Asset pursuant to a Designated Asset Contract, but only to the extent that such notes or other obligations or Indebtedness were explicitly required to be included, or permitted to be included solely at the option of the purchaser, in such consideration pursuant to such contract;
(4) Indebtedness actually received by the Company or any Capital Stock such Restricted Subsidiary as consideration for the sale or assets other disposition of an Unoccupied Facility, in an aggregate principal amount, in any fiscal year of the kind referred Company, when taken together with all Indebtedness received as consideration pursuant to in this clause (2) or (4) since the date hereof (but, to the extent that the principal of Section 4.10(cany Indebtedness received pursuant to this clause (4) is repaid in cash or such Indebtedness is sold or otherwise liquidated for cash, minus the amount of such cash received), not to exceed $20 million; and
(5) any Designated Non-cash Cash Consideration received by the Company or any such Restricted Subsidiary in the Asset Sale, in an aggregate amount in any fiscal year of the Company (measured on the date such Designated Non-Cash Consideration was received without giving effect to subsequent changes in value), when taken together with all other Designated Non-Cash Consideration received as consideration pursuant to this clause (5) during such fiscal year (but, to the extent that any such Designated Non-Cash Consideration is sold or otherwise liquidated for cash, minus the lesser of (x) the amount of the cash received (less the cost of disposition, if any) and (y) the initial amount of such Designated Non-Cash Consideration), not to exceed $25 million.
(b) Notwithstanding subsection (a) of this Section 4.10, the Company and its Restricted Subsidiaries may engage in Asset Swaps; provided that:
(i) immediately after giving effect to such Asset Swap, the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) hereof; and
(ii) the Board of Directors of the Company determines that the fair market value of the assets received by the Company or the Restricted Subsidiary in the Asset Swap is not less than the fair market value of the assets disposed of by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% Swap and such determination is evidenced by a resolution of the Company’s Adjusted Consolidated Net Tangible Assets (determined at Board of Directors set forth in an Officers’ Certificate delivered to the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in valueTrustee.
(c) Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the applicable Restricted Subsidiary may apply those Net Proceeds, at its option:
(or any i) to repay permanently Indebtedness under the Credit Agreement (and with respect to Net Proceeds of a Restricted Subsidiary that is not a Guarantor, Indebtedness of such Restricted Subsidiary) may apply such Net Proceeds at its option and, if the Indebtedness permanently repaid is revolving credit Indebtedness, to any combination of the following:correspondingly reduce commitments with respect thereto;
(1) to repay, repurchase or redeem any Indebtedness of the Company or a Restricted Subsidiary of the Company, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock to acquire, or (iii) Indebtedness owed enter into a definitive agreement to an Affiliate of the Company;
(2) to acquire acquire, all or substantially all of the assetsassets of, a Permitted Business or any Capital Stock, a majority of one or more other Persons primarily the Voting Stock of a Person engaged in the Oil and Gas a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, provided that such Person becomes a Restricted Subsidiary and provided further, however, in the case of the Companya definitive agreement, that such acquisition closes within 120 days of such 360 day period;
(3iii) to make a capital expenditures expenditure in respect or that is used or useful in a Permitted Business (provided that the completion of
(a) construction of new facilities, (b) expansions to existing facilities and (c) repair or construction of damaged or destroyed facilities, in each case, which commences within such 360 days may extend for an additional 360 day period if the Company’s Net Proceeds to be used for such construction, expansion or any Restricted Subsidiaries’ Oil and Gas Businessrepair are committed specifically for such activity within such 360 days); or
(4iv) to acquire other long-term assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the Net Proceeds in any manner that is not prohibited by this Indenture. .
(d) Any Net Proceeds from Asset Sales that are not applied or invested as provided in Section 4.10(c) the preceding paragraph, or that the Company determines will not be applied or invested as provided in the preceding paragraph, will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 25.0 million, within five days thereof, the Company will shall make an offer (an “Asset Sale Offer”) to all Holders of Notes and, at the Notes and Company’s option, all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Section 4.10 Indenture with respect to offers to purchase, prepay purchase or redeem with the proceeds of sales of assets assets, to purchase, prepay or redeem, purchase on a pro rata basis, basis the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount, plus accrued and unpaid interestinterest and Liquidated Damages, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will shall be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered in into such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of NotesProceeds, the Trustee will select the Notes to and such other pari passu Indebtedness shall be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased)basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. .
(e) The Company will shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the Asset Sale provisions of this Section 4.10Indenture, the Company will shall comply with the applicable securities laws and regulations and will shall not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by virtue of such complianceconflict.
Appears in 1 contract
Samples: Indenture
Asset Sales. The Company will shall not, and will shall not permit any of its Restricted Subsidiaries to, to consummate an Asset Sale unless:
: (ai) the Company (or a the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (measured as of the date of the definitive agreement with respect to such Asset Sale) fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; and
(bii) the fair market value is determined by the Board of Directors of the Company; and (iii) at least 75% of the aggregate consideration received in the Asset Sale by the Company or a such Restricted Subsidiary and all other Asset Sales since the date of this Indenture is in the form of cash or Cash Equivalents. For purposes of this provision, each of the following will be deemed to be cash:
cash or Cash Equivalents: (1a) any liabilities, as shown on the Company’s or such Restricted Subsidiary’s most recent consolidated balance sheet, of the Company or any such Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Note Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a novation or indemnity agreement that and the lender releases the Company or such Restricted Subsidiary from or indemnifies the Company or such Restricted Subsidiary against further liability;
; (2) with respect to any Asset Sale of oil and natural gas properties by the Company or any Restricted Subsidiary where the Company or such Restricted Subsidiary retains an interest in such property, the costs and expenses of the Company or such Restricted Subsidiary related to the exploration, development, completion or production of such properties and activities related thereto which the transferee (or an Affiliate thereof) agrees to pay;
(3b) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are, within 180 days of the Asset Sale, are promptly converted by the Company or such Restricted Subsidiary into cashcash or Cash Equivalents, to the extent of the cash or Cash Equivalents received in that conversion;
(4) any Capital Stock or assets of the kind referred to in clause (2) or (4) of Section 4.10(c); and
(5) any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (e), not to exceed an amount equal to 5.0% of the Company’s Adjusted Consolidated Net Tangible Assets (determined at the time of receipt of such Designated Non-cash Consideration), with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
(c) Replacement Assets. Within 360 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or any the Restricted Subsidiary) , as the case may be, may apply an amount equal to such Net Proceeds at its option to any combination of the followingoption:
(1) to repay, repurchase or redeem repay any Indebtedness Senior Debt of the Company or a any of its Restricted Subsidiary of Subsidiaries and, if the CompanySenior Debt repaid is revolving credit Indebtedness, other than (i) Indebtedness of an Issuer or a Guarantor that is subordinated to the Notes or the Note Guarantees, (ii) Capital Stock or (iii) Indebtedness owed to an Affiliate of the Companycorrespondingly reduce commitments with respect thereto;
(2) to acquire all or substantially all of the assets, or any Capital Stock, Voting Stock of one or more other Persons primarily engaged in the Oil and Gas a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditures in respect of the Company’s or any Restricted Subsidiaries’ Oil and Gas Businessexpenditure; or
(4) to acquire other long-term assets that are not classified as current assets under GAAP and that are used or useful in the Oil and Gas a Permitted Business. The requirement of clause (2) or (4) of Section 4.10(c) shall be deemed to be satisfied if a bona fide binding contract committing to make the investment, acquisition or expenditure referred to therein is entered into by the Company or any of its Restricted Subsidiaries with a Person other than an Affiliate of the Company within the time period specified in the preceding paragraph and such Net Proceeds are subsequently applied in accordance with such contract within 180 days following the date such agreement is entered into. Pending the final application of any Net Proceeds, the Company (may temporarily reduce revolving credit borrowings or any Restricted Subsidiary) may otherwise invest the Net Proceeds in any manner that is not otherwise prohibited by under this Indenture. Any If any portion of the Net Proceeds from Asset Sales that are is not applied or invested as provided in Section 4.10(cclauses (1) through (4) of the paragraph above, such amount will constitute “Excess Proceeds.” When the aggregate amount of Excess Proceeds exceeds $20.0 10.0 million, within five days thereof, the Company will shall make an offer to holders of the Notes (an and to holders of Existing Senior Subordinated Notes and to holders of other Senior Subordinated Indebtedness of the Company designated by the Company) to purchase Notes (and Existing Senior Subordinated Notes and such other Senior Subordinated Indebtedness of the Company) pursuant to and subject to the conditions contained in this Indenture (the “Asset Sale Offer”) to all Holders ). The Company shall purchase Notes, Existing Senior Subordinated Notes and such other Senior Subordinated Indebtedness of the Notes and all holders Company tendered pursuant to the Asset Sale Offer at a purchase price of 100% of their principal amount (or, in the event such other Senior Subordinated Indebtedness that is pari passu of the Company was issued with significant original issue discount, 100% of the accreted value thereof) without premium, plus accrued but unpaid interest (or, in respect of such other Senior Subordinated Indebtedness of the Company, such lesser price, if any, as may be provided for by the terms of such Senior Subordinated Indebtedness) in accordance with the Notes containing provisions similar to those procedures (including prorating in the event of oversubscription) set forth in this Section 4.10 with respect Indenture (the “Asset Sale Offer Price”). If the aggregate purchase price of the securities tendered exceeds the Net Proceeds allotted to offers to their purchase, prepay or redeem with the proceeds of sales of assets Company will select the securities to purchase, prepay or redeem, be purchased on a pro rata basisbasis but in round denominations, which in the maximum principal amount of Notes and such other pari passu Indebtedness (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith) that may be purchased, prepaid or redeemed out case of the Excess Proceeds. The offer price in Notes will be integral multiples of $1,000; provided that the unpurchased portion of the Notes of any Asset Sale Offer will Holder shall be equal to 100% $2,000 in principal amount or an integral multiple of the principal amount, plus accrued and unpaid interest, if any, to the date of purchase, prepayment or redemption, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date, and will be payable $1,000 in cashexcess thereof. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes tendered in such Asset Sale Offer exceeds the amount of Excess Proceeds allocated to the purchase of Notes, the Trustee will select the Notes to be purchased on a pro rata basis (except that any Notes represented by a Note in global form will be selected by such method as DTC or its nominee or successor may require or, where such nominee or successor is the Trustee, a method that most nearly approximates pro rata selection as the Trustee deems fair and appropriate unless otherwise required by law), based on the amounts tendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or an integral multiple of $1,000 in excess thereof, will be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. The Company will shall comply with the requirements of Section 14(e) of and Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with Section 3.09 or the Asset Sale provisions of this Section 4.10Indenture, the Company will shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.09 or the Asset Sale provisions of this Section 4.10 Indenture by virtue of such complianceconflict.
Appears in 1 contract
